Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable): (i) executed counterparts of this Agreement; (ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party; (iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents; (vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture; (vii) intentionally omitted; (viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect; (ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released; (x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement); (xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties; (xii) the Intercreditor Agreement; (A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents; (xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and (xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof. (b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000. (c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent. (d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009. (e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices. (f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000. (g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents. (h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained. (i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full. (j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger). (k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act. (l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date. (m) intentionally omitted. (n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 2 contracts
Sources: Credit Agreement (Quiksilver Inc), Credit Agreement (Quiksilver Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer Person of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Persons of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer Person thereof authorized to act as a Responsible Officer Person in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer Person of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Person of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that to the actual knowledge of Borrower there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter subordination agreements from the agent for holders of the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedSubordinated Liabilities, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretodocuments, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentconsents or opinions as Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent), but in no event to exceed $20,000 in the Borrowers and any Agent or Arranger)aggregate.
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31February 28, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2007. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Fresh Market, Inc.), Credit Agreement (Fresh Market, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Revolving Note, a Tranche A Term Loan Note and a Tranche B Term Loan Note each executed by each applicable Borrower in favor of each Lender requesting a Notesuch Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certificates as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that Borrower is, validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be expected to have a Material Adverse Effect, and (C) a calculation of the financial covenants set forth in Section 6.12 as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date with said calculation showing each component of each calculation;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from evidence that (A) the agent for Term Loan Agreement dated as of September 18, 2000, as amended, between Borrower and SunTrust Bank, (the lenders under the “Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement Agreement”) has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are beingbeing released, (B) the Amended, Restated and Substituted Promissory Note dated as of April 2, 2003 executed by the Borrower in favor of Bank of America, N.A. (the “Existing Promissory Note”) has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Promissory Note have been or concurrently with the Closing Date are being released;, and (C) the $10,000,000 Line of Credit between the Borrower and Bank of America, N.A. (the “Existing Line of Credit”) has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Line of Credit have been or concurrently with the Closing Date are being released; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan documents, consents or opinions as Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31April 30, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 thereto2003.
Appears in 2 contracts
Sources: Credit Agreement (Hooker Furniture Corp), Credit Agreement (Hooker Furniture Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender and Borrower (unless otherwise approved by Administrative Agent);
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s business in in its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectformation;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ Lovells US LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as in form and substance reasonably satisfactory to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either that individually or in the aggregate, a Material Adverse Effect, (1C) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, party and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturecurrent Debt Rating;
(vii) intentionally omitted;a duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower ended on March 31, 2016, signed by a Responsible Officer of Borrower; and
(viii) except such other customary documents, instruments, agreements, or information, as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofmay require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateThere shall not exist any action, (ii) the payment of all fees and other amounts due suit, investigation, or proceeding, pending or, to the Credit Parties by knowledge of a Responsible Officer of Borrower, threatened in any court or before any arbitrator or Governmental Authority related in any way to the Borrowers on Obligations or that could reasonably be expected to have a Material Adverse Effect; provided that the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, parties hereto acknowledge and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently agree that any settlement or litigation between Borrower and the Loan Parties’ expenses United States Department of Justice and liabilities being paid the United States Environmental Protection Agency related to the ongoing matter related to stormwater discharge practices of Borrower as disclosed in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability Borrower’s 2015 Form 10-K shall not be less than $10,000,000considered a Material Adverse Effect.
(c) The Administrative Agent and No Default shall exist, or would result from such proposed Credit Extension or from the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer application of the Lead Borrower or the Parentproceeds thereof.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(je) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid paid, subject to any limitations described in the Mandate Letter, all reasonable and documented out-of-pocket fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced not less than one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement, Credit Agreement (NVR Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date on or before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement and each other Collateral Document;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Party, is a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is (A) duly organized or articles of incorporation formed and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionB) and a certificate of validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning Lender (which opinion shall expressly permit reliance by successors and permitted assigns of the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsaddressees thereof);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each of Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of C▇▇▇▇▇▇▇▇ certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since June 30, 2020 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) except a duly completed Compliance Certificate as set forth of the last day of the fiscal quarter of C▇▇▇▇▇▇▇▇ ended December 31, 2020, signed by a Responsible Officer of C▇▇▇▇▇▇▇▇, together with the consolidated balance sheet of C▇▇▇▇▇▇▇▇ and its Consolidated Subsidiaries as of the fiscal quarter ended December 31, 2020, together with related consolidated statements of operations and retained earnings and cash flows for such fiscal quarter and the then elapsed portion of such fiscal year;
(ix) searches of UCC filings in the post-Closing Letterjurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;
(x) completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) such other assurances, certificates, documents, consents or opinions as the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full(including, and without limitation, all fees required to be paid by the Borrowers pursuant to Section 2.10(b)) to the Administrative Agent, the Arrangers and the Lenders on and any other accrued and unpaid fees or before the Closing Date shall have been paid in fullcommissions due hereunder.
(jc) The Borrowers Unless waived by the Administrative Agent, C▇▇▇▇▇▇▇▇ shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder actually incurred and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between C▇▇▇▇▇▇▇▇ and the Borrowers and any Agent or ArrangerAdministrative Agent).
(ki) The Agents Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, the Borrowers shall have received all provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot Act.
, in each case at least three (l3) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred days prior to the Closing Date and (ii) at least three (3) days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Carpenter Technology Corp), Credit Agreement (Carpenter Technology Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are of third parties, if any, required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
a certificate signed by a Responsible Officer of Borrower certifying (viiiA) except as set forth that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, evidence that a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixviii) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination completed Compliance Certificate as of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets last day of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension fiscal quarter of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or Borrower most recently ended prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed signed by a Responsible Officer of the Lead Borrower or the Parent.Borrower;
(dix) The Cocommitment letters from RBS Citizens, N.A. and TD Bank, N.A. for their pro-Collateral Agents shall be reasonably satisfied with the results rata share of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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.Commitment;
Appears in 2 contracts
Sources: Credit Agreement (Unitil Corp), Credit Agreement (Unitil Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentconditions:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date), unless otherwise specified in the Post-Closing Letter, and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, each Guaranty and the Deed of Trust, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting the Lender, in a Noteprincipal amount equal to the Lender’s Term Commitment;
(iii) certificates showing the existence of all insurance policies required by Section 6.07, naming the Administrative Agent as loss payee and additional insured.
(iv) such certificates of resolutions or other similar action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party which is not a natural Person as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as the Administrative Agent may require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each such Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may request;
(vivii) a certificate signed by of a Responsible Officer or Secretary of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and that to the knowledge of the Responsible Officer there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effecta Material Adverse Effect;
(ix) a payoff letter from solvency certificate signed by the agent for treasurer of the lenders under the Existing Credit Agreement reasonably satisfactory Borrower, in form and substance satisfactory to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto an asset appraisal and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (environmental assessment report with respect to the extent required by the Pledge Agreement)Mortgaged Property, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered form and substance satisfactory to the US Term Loan Agent subject to Administrative Agent, and in compliance with the Intercreditor Agreement)requirements of any applicable Laws;
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed a fully paid ALTA lender’s policy of title insurance in an amount required by the applicable Loan PartiesAdministrative Agent, showing no exceptions that would materially impair the value of the Mortgaged Property, containing customary endorsements and otherwise in form and substance satisfactory to the Administrative Agent, insuring the Deed of Trust to be a valid, perfected, first priority Lien on the Mortgaged Property, together with a current survey in form and substance and containing a certification to the Administrative Agent satisfactory to the Administrative Agent;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory amendments to the Co-Existing Credit Agreement and the Existing Credit Agreement Collateral Agents Documents to permit the Indebtedness under this Credit Agreement and (B) background checks on to cause the ParentExisting Credit Agreement Collateral Documents to secure, pari passu, the Loan Parties Existing Credit Agreement Obligations and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madeSecured Obligations; and
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and received on or before the Agents shall be reasonably satisfied with Closing Date a Consolidated balance sheet fee in the amount of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements product of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, (A) 1.00% and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (iB) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Aggregate Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Commitments. Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July January 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2008. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Term Credit Agreement (Powersecure International, Inc.), Term Credit Agreement (Powersecure International, Inc.)
Conditions of Initial Credit Extension. The obligation of the any L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreements, and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowers;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden▇▇▇▇▇▇ ▇. Faneuil, Arps, Slate, ▇Esq. and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit H and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Documents as the Required Lenders may reasonably request, a favorable opinion of ▇▇▇▇▇▇▇, counsel to Cascade, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H that relate to Cascade and such other matters concerning Cascade as the Required Lenders may reasonably request, a favorable opinion of ▇▇▇ Casgrain LLP ▇▇▇▇▇▇, counsel to Puritan Oil, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H that relate to Puritan Oil and such other matters concerning Puritan Oil as the Required Lenders may reasonably request and a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan PartiesGlobal Canada, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters set forth in Exhibit H that relate to Global Canada and such other matters concerning Global Canada as the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter fully executed Perfection Certificate from each Loan Party and the agent for results of Uniform Commercial Code searches with respect to the lenders under the Existing Credit Agreement reasonably satisfactory Collateral, indicating no Liens other than Permitted Liens and otherwise in form and substance satisfactory to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuers, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents Security Documents shall be effective to create in favor of the Administrative Agent a legal, valid and enforceable first priority (except for Permitted Liens entitled to priority under applicable law) security interest in and lien upon the Collateral. All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009been duly effected. The Administrative Agent shall notify have received evidence thereof in form and substance satisfactory to the Lead Borrower Administrative Agent.
(e) The Administrative Agent and each of the Lenders shall have received from the Borrowers the Borrowing Base Report as of March 31, 2017.
(f) The Administrative Agent and each of the Closing Lenders shall have received the Audited Financial Statements, as well as the operating projections through the Maturity Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Global Partners Lp), Credit Agreement (Global Partners Lp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇in-house counsel to the Borrower and ▇▇▇▇▇ & ▇▇▇ ▇▇ LLP▇▇▇▇, special PLLC, counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit F and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the Parent.date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(dviii) The Co-Collateral Agents shall be reasonably satisfied with the results a duly completed Compliance Certificate as of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet last day of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion fiscal quarter of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending Borrower ended on July 31, 2009 and ending with the end 2008, signed by a Responsible Officer of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.Borrower;
(fix) The Lead (A) the $50,000,000 Revolving Credit Facility dated October 27, 2008, between the Borrower or any Subsidiary shall and Bank of America, N.A. and (B) the $25,000,000 Revolving Credit Facility dated October 29, 2008, between the Borrower and Branch Banking and Trust Company have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedeach been, or substantially simultaneously with herewith will be, terminated; and
(x) such other assurances, certificates, documents, consents or opinions as the initial Credit Extension under this Agreement shall receive, gross proceeds of Administrative Agent or the Term Loans in a minimum amount of $125,000,000Required Lenders reasonably may require.
(gb) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers Borrower pursuant to any of the Agents or the Arrangers Loan Documents on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Piedmont Natural Gas Co Inc), Credit Agreement (Piedmont Natural Gas Co Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement by the Administrative Agent, each Lender and each Loan Party;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) a payoff letter regarding the Existing Credit Agreement;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivvi) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of the Loan Parties is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction business in its state of organization or formation, the state of its principal place of business and from each other jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could would not reasonably be expected to have a Material Adverse Effect;
(vvii) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, dated as of the Closing Date, and in form and substance reasonably satisfactory to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Company certifying (A) that the conditions specified in Sections 4.02(a5.01(c) and 4.02(b5.02(a) and (b) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents satisfied and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agentscurrent Debt Ratings;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) Since December 31, 2006, there shall not have occurred a material adverse change in the operations, business, properties, liabilities (actual or contingent) or financial condition of the Company or the Consolidated Group taken as a whole.
(d) The Borrowers Company shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Credit Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Albemarle Corp), Credit Agreement (Albemarle Corp)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by each applicable Borrower the Co-Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, validly existing, in good standing and qualified to engage in business in its state of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (xA) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties and (B) the General Counsel of the Loan Parties, each addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Co-Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) except as set forth in any filings with the Securities & Exchange Commission by Premier, Inc. prior to the Closing Date (but excluding any risk factors, forward-looking disclosures and any other disclosures that are cautionary, predictive or forward-looking in nature other than any specific, historic factual information contained therein), there has been no event or circumstance that has occurred since June 30, 2018 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that, a calculation of the Consolidated Total Net Leverage Ratio as of the Closing Date last day of the fiscal year of the Co-Borrowers ended on June 30, 2018;
(viii) a certificate signed by a Responsible Officer of the Co-Borrowers certifying that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Co-Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(ix) an officer’s certificate prepared by the chief financial officer or other Responsible Officer approved by the Administrative Agent of Holdings as to the financial condition, solvency and related matters of the Loan Parties and their Subsidiaries, on a Consolidated Basis, after giving effect to the transactions contemplated hereby, and the initial borrowings under the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;Documents.
(viix) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence reasonably establishing that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixxi) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (financial statements referred to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan PartiesSection 5.05;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results evidence reasonably establishing that Indebtedness for borrowed money of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory Subsidiaries existing pursuant to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (Existing Credit Agreement shall be repaid in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Partiesfull and all security interests, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documentsif any, and (B) Credit Card Notifications and Blocked Account Agreements required to guarantees related thereto shall be delivered terminated on or prior to the Closing Date pursuant to Section 6.13 hereofDate; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Unless waived by the Administrative Agent, the Co-Borrowers shall have paid (a) all reasonable and documented actual fees, charges and disbursements of counsels ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the Agents Administrative Agent and Arrangers ▇▇▇▇▇ Fargo Securities, LLC (directly to such counsel if requested by the Administrative Agent), to the extent payable invoiced on or prior to the Closing Date and (b) all reasonable actual due diligence expenses incurred by the Borrowers hereunder Administrator Agent and invoiced the Arrangers, in connection with the syndication of the credit facilities provided for herein and the preparation, negotiation, execution, and delivery of the Loan Documents; provided, however, the fees paid to counsel to the Administrative Agent and the Arrangers shall in no event exceed the amount set forth in the Fee Letter.
(i) Upon the reasonable request of any Lender made at least ten days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Co-Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations includingregulations, without limitationincluding the PATRIOT Act, in each case at least five days prior to the Patriot Act.
Closing Date and (lii) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least five days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Premier, Inc.), Credit Agreement (Premier, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Lender:
(i) executed counterparts of this Agreement, and all Collateral Documents, sufficient in number for distribution to Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note[Reserved];
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Lender may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Lender may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesParties acceptable to Lender, addressed to the Administrative Agent and each Domestic Lender, as in form and substance satisfactory to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required by any Governmental Authority in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to commitments under the Loan Documents Credit Agreement dated July 1, 2004 between Borrower and all endorsements in favor of the Administrative Agent or the Canadian Agent▇▇▇▇▇ Fargo Bank, N.A., as applicablelender (as amended, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the “Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has Agreement”), have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madethereunder terminated; and
(xvix) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or opinions as Lender reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofmay require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Lender, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Lender (directly to such counsel if requested by Lender) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerLender).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31February 27, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 2 contracts
Sources: Credit Agreement (Gen Probe Inc), Credit Agreement (Gen Probe Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement and all other Collateral Documents, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since June 30, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 2 contracts
Sources: Credit Agreement (Greenway Medical Technologies Inc), Credit Agreement (Greenway Medical Technologies Inc)
Conditions of Initial Credit Extension. The effectiveness of the amendment and restatement of the Original Credit Agreement pursuant to this Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Lender:
(i) executed counterparts of this Agreement, and the Reaffirmation Agreement of even date, sufficient in number for distribution to Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a NoteLender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Lender may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Lender may reasonably require to evidence that each Loan Party’s certificate or articles of incorporation Party is duly formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that such Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion letter of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Lender addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan DocumentsDocuments in form and substance satisfactory to Lender; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;and
(vi) a certificate signed by a Responsible Officer of the Lead Borrowerassurances, satisfactory in form certificates, documents, consents and substance to the Agents, certifying opinion letters (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth listed on Schedule 4.01(a)(x) 4.01 hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management otherwise reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofLender.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Lender, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Lender (directly to such counsel if requested by Lender) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerLender).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 2 contracts
Sources: Credit Agreement (Heritage-Crystal Clean, Inc.), Credit Agreement (Heritage-Crystal Clean, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Security Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Notes executed by each applicable the Borrower in favor of and delivered to each Lender requesting that requests issuance of a Note;
(iii) a consent executed by the Guarantors pursuant to which each Guarantor consents to the amendment and restatement of the Existing Credit Agreement by this Agreement and reaffirms its obligations under the Guaranty;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPL.L.P., special and general counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit D and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effecta Material Adverse Effect;
(ix) a payoff letter from solvency certificate signed by the agent for Treasurer (or such other officer as may be acceptable to the lenders under Administrative Agent) of the Existing Credit Agreement reasonably satisfactory Borrower in form and substance satisfactory to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies a Borrowing Base Certificate prepared as of certificates evidencing any stock being pledged under the Pledge Agreement on a date no earlier than 60 days prior to the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Date; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect The Administrative Agent shall have received confirmation that all UCC-3 amendments relating to (i) the first funding under filings previously made to perfect its Liens in the Loans (if any) on Collateral have been filed in the Closing Dateappropriate jurisdictions, (ii) the payment as well as copies of all fees UCC searches of the Borrower and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documentsits Material Domestic Subsidiaries, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000each such search showing no Liens except Permitted Liens.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated list of all Rolling Stock owned by the Closing DateLoan Parties (other than Rolling Stock with a de minimis value), relating to the month ended on June 30, 2009, which list shall categorize each item of material Rolling Stock and executed shall identify whether such Rolling Stock is evidenced by a Responsible Officer certificate of the Lead Borrower or the Parenttitle.
(d) The Co-Collateral Agents Administrative Agent shall be reasonably satisfied with have received executed counterparts of this Agreement from the results of the inventory appraisal conducted by Great American Group dated April, 2009Required Lenders.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jf) The Borrowers Administrative Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by the Borrower and its Subsidiaries, all in compliance with the Loan Documents.
(g) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(h) There shall not have occurred a material adverse change (x) in the operations, business, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole, since May 31, 2008 or (y) in the facts and information regarding such entities represented to date.
(i) The Administrative Agent shall be satisfied that no action, suit, investigation, litigation or proceeding is pending or threatened in any court or before any arbitrator or other Governmental Authority that could reasonably be expected to (i) have a Material Adverse Effect, or could impair the Borrower’s ability to perform satisfactorily under this Agreement or (ii) materially and adversely affect this Agreement or the transactions contemplated thereby.
(j) The Administrative Agent or Arranger)shall have received, in form and detail satisfactory to it, financial statements dated as of February 28, 2009.
(k) The Agents Upon giving effect to the Total Outstandings as of the Closing Date, Availability shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Actbe at least $100,000,000.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower have completed its business, financial and the Lenders legal due diligence of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties, including a field exam and an appraisal with results satisfactory to the Administrative Agent. Without limiting the generality of the last paragraph of Section 9.03 or the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Texas Industries Inc), Credit Agreement (Texas Industries Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) a calculation of the Consolidated Funded Indebtedness to Capitalization Ratio as of the Closing Date;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;; and
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Specified Existing Credit Agreement Indebtedness has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)full, any related credit facilities are terminated and all Liens securing obligations under the Existing Credit Agreement same have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Mueller Industries Inc), Credit Agreement (Mueller Industries Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties sufficient in number for distribution to Administrative Agent, each Lender, and Borrower for each Initial Borrowing Base Property;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Responsible Officer of such Loan Party to be true and correct as of the Closing Date;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of DLA Piper LLP (x) SkaddenUS), Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-aggregate, a Material Adverse Effect;
(ix) a duly completed Borrowing Base Report and Compliance Certificate as of the Closing LetterDate, signed by a Responsible Officer of Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be documents, consents or opinions as Administrative Agent or Required Lenders reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofmay require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Term Loan Agreement (STAG Industrial, Inc.), Term Loan Agreement (STAG Industrial, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedenton or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):Party, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement;
(ii) a Note executed by each applicable Borrower the Company in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) to the extent required under the Collateral and Guarantee Requirement, an opinion of local counsel for the Loan Parties in Iowa with respect to the enforceability and perfection of the Mortgage with respect to the Mortgaged Property in Iowa and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent;
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(D) a completed Perfection Certificate dated the Closing Date and signed by the associate general counsel or the chief legal officer of the Company, together with all attachments contemplated thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of each Loan Party’s certificate party or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect is to any non-U.S. jurisdiction) and be a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to party on the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 EffectClosing Date;
(v) a favorable opinion from (u) Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel to Holdings substantially in the form of Exhibit H-1, (xv) Skaddenlocal counsel in each of Iowa and Washington as may be reasonably required by the Administrative Agent, Arps(w) ▇▇▇▇▇▇▇▇, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPFinger, special Delaware counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and substantially in the Loan Documents; form of Exhibit H-2, and (yx) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, associate general counsel to the Company substantially in the form of Exhibit H-3, (y) ▇▇▇▇▇ LLP▇. ▇▇▇▇▇▇▇, counsels general counsel to WRC Media substantially in the Canadian Loan Partiesform of Exhibit H-4, addressed and (z) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel to Direct Holdings substantially in the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsform of Exhibit H-5;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Holdings certifying that (A) that except as set forth (x) in the conditions specified Company Disclosure Letter (as defined in Sections 4.02(athe Purchase Agreement) and 4.02(bor (y) have been satisfiedin Reader’s Digest’s Annual Report on Form 10-K for the fiscal year ended June 30, (B) either that (1) no consents2006, licenses or approvals are required in connection filed with the executionSEC on August 21, delivery 2006, Reader’s Digest’s Current Reports on Forms 8-K filed with the SEC on October 4, 2006 and performance by October 5, 2006, Reader’s Digest’s proxy statement on Schedule 14A filed with the SEC on September 29, 2006, Reader’s Digest’s Registration Statement on Form S-8 filed with the SEC on August 21, 2006, and post-effective amendment thereto dated August 22, 2006, but excluding in each case under this clause (y) any Loan Party risk factor disclosures or other cautionary, predictive and forward looking disclosures contained in any such document under the validity against such Loan Party heading “Risk Factors” or “Forward Looking Statements” or under any other heading, from June 30, 2006 to November 16, 2006, there has been no state of the Loan Documents to which it is a partyfacts, or (2) that all such consentsevent, licenses and approvals have been obtained and are in full force and change, effect, (C) development, condition or occurrence that, as of individually or in the Closing Date after giving effect aggregate, has had or could reasonably be expected to the transactions contemplated hereby, the Loan Parties on result in a consolidated basis are SolventMaterial Adverse Change, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viiiB) except as set forth in the post-Closing Company Disclosure Letter, since November 16, 2006, there has been no event, change, effect, development, condition or occurrence that, individually or in the aggregate, has had or could reasonably be expected to result in a Material Adverse Change;
(vii) a certificate signed by a Responsible Officer of Holdings certifying that since June 30, 2006 there has been no event, change, effect, development, condition or occurrence with respect to WRC Media, Direct Holdings or any of their respective subsidiaries that, individually or in the aggregate, has had, or would reasonably be expected to have a material adverse effect on the business, operations, property or financial condition of Reader’s Digest, WRC Media, Direct Holdings and their respective subsidiaries, taken as a whole.
(viii) a certificate (which shall be reasonably satisfactory to the Administrative Agent) attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the Treasurer of Holdings;
(ix) except as set forth in Section 6.17, evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and all endorsements is in favor of effect and that the Administrative Agent has been named as loss payee or the Canadian Agentadditional insured, as applicableappropriate, required under each insurance policy with respect to such liability and property insurance as to which the Loan Documents Administrative Agent shall have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance requested to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedbe so named;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies a Committed Loan Notice or Letter of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (Credit Application, as applicable, relating to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);initial Credit Extension; and
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower or Company certifying compliance with the Parentconditions set forth in paragraphs (a) and (b) of Section 4.02.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(ib) All fees and expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or hereunder and invoiced before the Closing Date shall have been paid in fullfull in cash.
(c) Prior to or substantially contemporaneously with the initial Credit Extension, (i) the Sponsor Equity Contributions shall have been funded in full in cash; and (ii) Acquisition Co shall have received (as a common equity capital contribution or, if otherwise, on terms and conditions reasonably satisfactory in all material respects to the Administrative Agent) cash proceeds from the Equity Contribution in an aggregate amount, when combined with (x) the aggregate value of the Company Preferred Stock that is rolled over in connection with the Transactions and (y) the value (which shall be calculated net of the fees and expenses of the Company in connection with the WRC Acquisition and the DH Acquisition in excess of $15,000,000) of the Equity Interests issued by Holdings to the shareholders of WRC Media and Direct Holdings as consideration for the WRC Acquisition and the DH Acquisition, respectively) is equal to at least 29% of the total capitalization of the Company.
(d) The Acquisition and the Merger shall be consummated in accordance with the terms of the Purchase Agreement without waiver or amendment of any material provisions thereof (other than any such waivers or amendments as are not, taken as a whole, materially adverse to the Lenders) unless consented to by the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) The DH Acquisition shall be consummated in accordance with the terms of the DH Acquisition Agreement without waiver or amendment of any material provisions thereof (other than any such waivers or amendments as are not, taken as a whole, materially adverse to the Lenders) unless consented to by the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. Holdings shall have contributed all of the Equity Interests of Direct Holdings to the Company.
(f) The WRC Acquisition shall be consummated in accordance with the terms of the WRC Acquisition Agreement without waiver or amendment of any material provisions thereof (other than any such waivers or amendments as are not, taken as a whole, materially adverse to the Lenders) unless consented to by the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. Holdings shall have contributed all of the Equity Interests of WRC Media to the Company.
(g) Prior to or substantially contemporaneously with the initial Credit Extensions, the Company shall have received at least $600,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes.
(h) Prior to or substantially contemporaneously with the initial Credit Extensions, Holdings shall have received at least $274,000,000 in gross cash proceeds from the issuance of the Holdings Senior PIK Preferred.
(i) Prior to or substantially contemporaneously with the initial Credit Extensions, Holdings shall have received at least $91,333,333.33 in gross cash proceeds from the issuance of the Holdings Common Equity.
(j) The Administrative Agent shall have received evidence reasonably satisfactory to it that all loans outstanding under the Existing Credit Agreement and the Existing DH/WRC Debt Agreements and all accrued and unpaid interest, fees required to be paid by the Borrowers to the Lenders on or before the Closing Date and other amounts owing thereunder shall have been paid in full.
(j) The Borrowers , all commitments to extend credit thereunder shall have paid terminated, and all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced Liens securing obligations thereunder shall have been released. A Successful Consent Solicitation or a Defeasance shall have been consummated. Except for (A) any Existing Notes not repurchased or redeemed on or prior to or on the Closing Date, plus such additional amounts of such fees(B) Indebtedness listed on Schedule 7.03(b), charges (C) the Company Preferred Stock, (D) the Loans and disbursements payable by L/C Obligations, (E) the Borrowers hereunder as Senior Subordinated Notes and (F) the Holdings PIK Preferred, Holdings, the Company and its Subsidiaries shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred have no Indebtedness or preferred Equity Interests outstanding after giving effect to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger)Transaction.
(k) The Agents Arrangers and the Lenders shall have received all documentation (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and other information required (iii) to the extent made available by regulatory authorities under applicable “know your customer” each of Reader’s Digest, Direct Holdings and anti-money laundering rules WRC Media, monthly financial data generated by each of Reader’s Digest’s, Direct Holdings’, and regulations including, without limitation, WRC Media’s internal accounting systems for use by senior management for each month ended after the Patriot Act.
latest fiscal quarter for which Unaudited Financial Statements are delivered pursuant to clause (lii) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to above and at least 30 days before the Closing Date.
(m) intentionally omitted.
(nl) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower Arrangers and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 theretoPro Forma Balance Sheet.
Appears in 2 contracts
Sources: Credit Agreement (Readers Digest Association Inc), Credit Agreement (Direct Holdings Libraries Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) [reserved]
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of (x) SkaddenDLA Piper, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, evidence that all insurance required to be maintained pursuant a Material Adverse Effect and (C) a calculation of the Consolidated Net Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effectClosing Date;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing [reserved];
(x) evidence that the Existing Credit Agreement (and all commitments thereunder) has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid terminated (and each Lender hereunder which was a “Lender” as defined in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with waives the Closing Date are being, released;
(x) requirement under Section 2.06 of the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies Existing Credit Agreement for five Business Days prior notice of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreementtermination thereof), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Varian Medical Systems Inc), Credit Agreement (Varian Medical Systems Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of the Borrower and Loan Parties is validly existing, in good standing and qualified to engage in business in its state of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionformation) and a certificate of good standing (where applicable, or such in each other customary functionally equivalent certificates, to state requested by the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 EffectAdministrative Agent;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, substantially in the form attached hereto as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsExhibit H;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31April 12, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. 2011 Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Aar Corp), Credit Agreement (Aar Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Lender:
(i) executed counterparts of this Agreement, the Security Documents and the Subsidiary Guaranty;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteLender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Lender may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Lender may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) SkaddenBorrower’s In House Counsel, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, Documents as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsLender may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing Letterlast day of the most recent fiscal quarter of Company for which financial statements have been filed with the United States Securities and Exchange Commission, signed by a Responsible Officer of Company;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretodocuments, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be consents or opinions as Lender reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofmay require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Lender, Company shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Lender to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or ArrangerLender).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 2 contracts
Sources: Credit Agreement (Diodes Inc /Del/), Credit Agreement (Diodes Inc /Del/)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to each of the Domestic Loan Parties' corporate, regulatory and applicable local counsel, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties in form and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth the audited financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2015 and the unaudited financial statements of the Borrower and its Subsidiaries for the fiscal quarter of the Borrower ended March 31, 2016 along with a duly completed Compliance Certificate, signed by a Responsible Officer of the Borrower;
(ix) evidence that all Prior Indebtedness has been paid in the post-Closing Letter, full in cash and all Liens securing such Prior Indebtedness have been terminated;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 2 contracts
Sources: Credit Agreement, Credit Agreement (Gas Natural Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of the Organization Documents of each Loan Party’s certificate Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or articles other jurisdiction of its incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other customary functionally equivalent certificatesdocuments and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business 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 opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary such matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Administrative Agent may request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (c) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing Letterlast day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixx) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and certificate executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results as of the inventory appraisal conducted by Great American Group dated AprilClosing Date, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with regarding the initial Credit Extension under this Agreement shall receiveSolvency of (A) the Borrower, gross proceeds (B) each of the Term Loans in other Loan Parties, and (C) the Consolidated Parties on a minimum amount of $125,000,000consolidated basis; and
(xi) 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.
(gb) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by hereunder or under the Borrowers to any of the Agents or the Arrangers Fee Letters on or before the Closing Date shall have been paid in full, and all (provided such fees required to may be paid by from the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullproceeds of such initial Credit Extension).
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents shall have received all documentation representations and warranties of the Borrower and each other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party contained in Section 5 or any Credit Party other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall have occurred prior to be true and correct on and as of the Closing Date.
(me) intentionally omittedNo Default shall exist, or would result from, such proposed Credit Extension or from the application of the proceeds thereof.
(nf) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(g) The Closing Date absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(h) The Parent REIT and the Borrower shall have occurred on or before July 31entered into (i) the US Bank Facility, 2009. The Administrative Agent shall notify the Lead Borrower PNC Facility, the Capital One Facility and the Lenders US Bank Lessee Line of Credit and (ii) a conforming amendment to the Closing DateSenior Notes, each in form and such notice shall be conclusive and binding on substance reasonably satisfactory to the Loan PartiesAdministrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 originals, telecopies, faxes or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) scanned pdf files (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) the Collateral Documents, executed by the Loan Parties party thereto in appropriate form for recording, where necessary, together with such evidence that such reasonable actions as are necessary or, in the opinion of the Administrative Agent or the Required Lenders, desirable to perfect the Administrative Agent’s Liens in the Collateral, have been taken or arrangements therefor satisfactory to the Administrative Agent have been made;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party or is to be a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vi) (A) a favorable opinion of (x) SkaddenWeil, Arps, Slate, ▇Gotshal & ▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; set forth in Exhibit H, and (yB) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels local counsel opinions relating to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsreal property Collateral;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, evidence a Material Adverse Effect;
(ix) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Parent and the Borrower ended March 28, 2009, signed by the chief executive officer, chief financial officer, treasurer or controller of the Parent;
(x) (A) a survey of the New Jersey Headquarters, the Elk Grove Facility and the Oregon Tank Farm, and (B) mortgagee title insurance policies (with customary endorsements) covering each of the Elk Grove Facility and the Oregon Tank Farm (a mortgagee title insurance policy covering the New Jersey Headquarters shall not be required);
(xi) A certificate of the Borrower confirming that (A) all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect, (B) there are no past due premiums in respect of any such insurance, and (C) attached thereto are the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(ixxii) copies of environmental reports, if any, previously prepared for the Borrower with respect to the New Jersey Headquarters, the Elk Grove Facility, and the Oregon Tank Farm;
(xiii) a payoff letter from certificate of a Responsible Officer of the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing Borrower certifying that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except commitments to the extent expressly set forth therein), and all Liens securing obligations extend credit under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged terminated, all indebtedness or other obligations then due under the Pledge Existing Credit Agreement on have been, or concurrently with the Closing Date (to are being, repaid, and no letters of credit will remain outstanding under the extent required by the Pledge Existing Credit Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as a certificate of a date reasonably satisfactory to Responsible Officer of the Co-Collateral Agents) indicating Borrower certifying that the absence of Liens Borrower Partnership Agreement as in effect on the assets Closing Date has been amended to include provisions (A) permitting the pledge of the Loan Partiesgeneral and limited partnership interests of the Borrower as Collateral, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents (B) providing for the delivery right to enforce such Lien and acquire or transfer such limited and general partnership interests (and in connection with such enforcement, be admitted, or have such transferee be admitted, as a substitute limited partner or general partner, as applicable, without the consent of such termination statements the Board of Supervisors of the Borrower or any other person or entity), and releases, satisfactions and discharges have been made(C) as may be necessary to effectuate the foregoing; and
(xv) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates or reasonably requested by documents as the Agents or the Canadian Administrative Agent, as applicablethe L/C Issuer, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower Swing Line Lender or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance Lender reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtainedmay require.
(i) All fees required to be paid by to the Borrowers to any of Administrative Agent and the Agents or the Arrangers Arranger on or before the Closing Date shall have been paid in full, and (ii) all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel (including local counsel) to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any the Administrative Agent or Arrangersuch counsel).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31, 2009. .
(e) The Administrative Agent conditions precedent set forth in Section 4.02 shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Partieshave been satisfied. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note Notes executed by each applicable Borrower in favor of each Lender requesting a Notesuch Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance acceptable to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower;
(ix) a payoff letter from the agent forecast for the lenders under Borrower’s fiscal year ending May 31, 2009, in the Existing Credit Agreement reasonably satisfactory in form and substance to same format as required for the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated2010 fiscal year forecast, all obligations thereunder are being paid as described in full (except to the extent expressly set forth thereinSection 6.01(c), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretodocuments, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentconsents or opinions as Agent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents L/C Issuer or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all the reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAgent). 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Mistras Group, Inc.), Credit Agreement (Mistras Group, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other in electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) format (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all material consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) that, as of after giving effect to this Agreement and the Closing Date other Loan Documents (including after giving effect to the transactions contemplated herebyinitial Loans under this Agreement), the Loan Parties on a consolidated basis are Borrower will be Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower ended June 30, 2013, signed by a Responsible Officer of Borrower;
(x) evidence that all commitments under that certain Credit Agreement dated as of February 10, 2011 among Borrower and MUFG Union Bank, N.A., as administrative agent and lender (as amended and restated from time to time, the agent for the lenders under the “Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has Agreement”), have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentdocuments, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches consents or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated opinions as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Agent or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by in connection with this Agreement (including but not limited to the Borrowers to any of the Agents or the Arrangers Agent Fee Letter) on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31November 27, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2013. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Resmed Inc), Credit Agreement (Resmed Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note the Notes, executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP. Faneuil, special Esq., counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrowers certifying (A) that the conditions specified in Sections 4.2(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under evidence that each of the Existing Credit Agreement reasonably satisfactory and the GPC Credit Agreement (as such term is defined in form and substance to the Agents evidencing that the Existing Credit Agreement has Agreement) have been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens securing obligations under the Existing Credit Agreement and the GPC Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) a fully executed Perfection Certificate from each Loan Party and the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies results of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (Uniform Commercial Code searches with respect to the extent required by Collateral, indicating no Liens other than Permitted Liens and otherwise in form and substance satisfactory the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Administrative Agent;
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written most recent Accounts Receivable aging report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case Borrowers dated as of a date reasonably satisfactory to the Co-Collateral Agentswhich shall be no more than fifteen (15) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or days prior to the Closing Date pursuant to Section 6.13 hereofand the Borrowers shall have notified the Administrative Agent in writing on the Closing Date of any material deviation from the Accounts Receivable values reflected in such Accounts Receivable aging report and shall have provided the Administrative Agent with such supplementary documentation as the Administrative Agent may reasonably request; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents Security Documents shall be effective to create in favor of the Administrative Agent a legal, valid and enforceable first (except for Permitted Liens entitled to priority under applicable law) security interest in and lien upon the Collateral. All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected. The Administrative Agent shall have received all documentation evidence thereof in form and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, substance satisfactory to the Patriot ActAdministrative Agent.
(le) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party The Administrative Agent and each of the Lenders shall have occurred received from the Borrowers the initial Borrowing Base Report and marked-to-market inventory report each as at .
(f) Evidence satisfactory to the Administrative Agent and each of the Lenders that MLP has consummated the initial public offering of its limited partnership units and has received gross cash proceeds in connection therewith of not less than $90,000,000.
(g) Evidence satisfactory to the Administrative Agent and each of the Lenders of the corporate and capital structure of the Loan Parties.
(h) The Administrative Agent and each of the Lenders shall have received the result of a commercial financial examination of the Borrowers, such examination to have been completed not more than prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , and the results thereof shall have occurred on or before July 31, 2009. The be satisfactory in all respects to the Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesLenders. Without limiting the generality of the provisions of Section 9.049.4, for purposes of determining compliance with the conditions specified in this Section 4.014.1, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Global Partners LP), Credit Agreement (Global Partners LP)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Except to the extent permitted to be delivered pursuant to Section 7.16, the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreements described in clauses (a) and (b) of the definition thereof, the Pledge Agreements described in clauses (a) and (b) of the definition thereof, the Company Guaranty and the Subsidiary Guaranty;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders amounts owing under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedLenders who elect not to become Lenders hereunder, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)if any, and all Liens securing obligations accrued and unpaid interest and fees owing to the Lenders and the L/C Issuer under the Existing Credit Agreement have been, or concurrently with the Closing Date are beingfunding of the Loans on the date hereof will be, releasedpaid;
(ix) delivery of Uniform Commercial Code financing statements suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien (subject only to Permitted Liens) in and to such other Collateral as the Administrative Agent may require including without limitation the delivery by the Loan Parties of certificates evidencing certain pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Company shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents Administrative Agent and each Lender shall have received at least 5 Business Days prior to the Closing Date (i) all documentation and other information required requested by regulatory authorities the Administrative Agent or such Lender, as applicable, in order to comply with its obligations under applicable “know your customer” and anti-money laundering rules and regulations includingregulations, without limitation, including the Patriot USA PATRIOT Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and (ii) with respect to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesBorrower. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 2 contracts
Sources: Credit Agreement (Tetra Tech Inc), Credit Agreement (Tetra Tech Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent in form and substance satisfactory to the Administrative Agent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Borrower, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) absent a Guaranty Release Event, the Subsidiary Guaranty, duly executed by each Subsidiary Guarantor;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as of the Closing Date as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each such 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;
(ivv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each Loan Party as of the Closing Date is validly existing and in good standing in its state of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectand/or domicile;
(vA) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; Documents as the Required Lenders may reasonably request, and (yB) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels a favorable opinion of New York counsel to the Canadian Loan Parties, reasonably acceptable to the Administrative Agent, addressed to the Canadian Administrative Agent and each Canadian Lender, Lender as to customary such New York Law matters concerning as the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vivii) a certificate of a Responsible Officer of each Loan Party as of the Closing Date either (A) confirming that all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party have been obtained, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, and (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could be reasonably expected to which it is have, either individually or in the aggregate, a party, or (2) that all such consents, licenses Material Adverse Effect; and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effectcurrent Debt Ratings;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens securing that obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, released;being satisfied; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to Any fees (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all including upfront fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iiiLenders) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in fullpaid, and all fees required to the Fee Letter shall be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullfull force and effect.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31November 30, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 thereto2003.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Financial Inc /De/)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):
(ior, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders: executed counterparts of this Agreement;
(ii) a Note , all Collateral Documents and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower; the assignments referred to in the Recitals of this Agreement executed by each applicable U.S. Bank National Association and ▇▇▇▇▇ Fargo Bank, N.A; the Notes executed by Borrower in favor of each Lender requesting a Note;
(iii) Notes; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of ; such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) ; if requested by Agent, a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, acceptable to Agent, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan DocumentsDocuments in form and substance satisfactory to Agent; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLPif requested by Agent, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; if requested by Agent, a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 0 (a) and (b) have been satisfied, and (B) that there has been no event or circumstance, since the date of the most recent financial statements of the Borrower and its Subsidiaries filed with the SEC, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) that, as that the calculation of the Closing Date after giving effect Consolidated Senior Leverage Ratio based on the financial statements of the Borrower and its Subsidiaries most recently provided to Administrative Agent pursuant to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, 2009 Credit Agreement is true and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Lettercorrect; if requested by Agent, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been ; such other assurances, certificates, documents, consents or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentopinions as Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be Required Lenders reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All may require. Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in fullpaid. Unless waived by Agent, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAgent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.010, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s Lender's receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Lender:
(i) executed counterparts of this AgreementAgreement and the Guaranty;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Notethe Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lender may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Lender may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of the Guarantors is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) SkaddenWilmer Cutler Pickering Hale and Dorr LLP, Arps, Slate, counsel to the Loan ▇▇▇▇▇▇▇ & ▇, ▇▇▇▇e▇▇▇▇ LLP▇▇ ▇▇▇ ▇▇nder, special counsel ▇▇ to the Domestic Loan Parties, addressed to the Administrative Agent matters set forth in Exhibit F and each Domestic Lender, as to customary such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsLender may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the Parentdate of the Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(b) Lender shall have reviewed and be reasonably satisfied with, and consented in writing to the final terms and conditions of any material amendment or modification to the Acquisition Agreement, it being agreed and understood that any increase in the Target per share offer price of CAN$17.70 shall be deemed to be a material amendment.
(c) Lender shall have consented in writing to any waiver by Borrower of any condition precedent to the execution of its tender offer for the Target as set forth in Section 3 and Schedule 1.1 of the Acquisition Agreement.
(d) The Co-Collateral Agents total purchase price to be paid by Borrower or a Subsidiary to acquire the tendered shares of Target under the Acquisition Agreement shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009not exceed $166,000,000.
(e) The Administrative Agent Closing Date shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income occur on or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July prior to May 31, 2009 and ending with 2005, unless the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicesLender has agreed to a later date.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jg) The Borrowers Unless waived by the Lender, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Lender to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Except to the extent permitted to be delivered pursuant to Section 7.16, the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreements described in clauses (a) and (b) of the definition thereof, the Pledge Agreements described in clauses (a) and (b) of the definition thereof, the Company Guaranty and the Subsidiary Guaranty;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders amounts owing under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedLenders who elect not to become Lenders hereunder, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)if any, and all Liens securing obligations accrued and unpaid interest and fees owing to the Lenders and the L/C Issuer under the Existing Credit Agreement have been, or concurrently with the Closing Date are beingfunding of the Loans on the date hereof will be, releasedpaid;
(ix) delivery of Uniform Commercial Code financing statements suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien (subject only to Permitted Liens) in and to such other Collateral as the Administrative Agent may require including without limitation the delivery by the Loan Parties of certificates evidencing certain pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Company shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents Administrative Agent and each Lender shall have received at least 5 Business Days prior to the Closing Date (i) all documentation and other information required requested by regulatory authorities the Administrative Agent or such Lender, as applicable, in order to comply with its obligations under applicable “know your customer” and anti-money laundering rules and regulations includingregulations, without limitation, including the Patriot USA PATRIOT Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and (ii) with respect to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 theretoBorrower.
Appears in 1 contract
Sources: Credit Agreement (Tetra Tech Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty and the Contribution Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of each Consolidated Subsidiary is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPor other attorney reasonably acceptable to Administrative Agent, special as counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit I and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing Letterlast day of the fiscal quarter of the Borrower ended on June 30, 2011, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31September 22, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2011. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certificates as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) that Borrower and a certificate of each Guarantor is, validly existing and in good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial that has had or could reasonably be expected to have a Material Adverse Effect, and (C) a calculation of the financial covenants set forth in Section 7.12 as of the last day of the fiscal quarter of Borrower ended April 1, 2006;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) evidence that the Credit Agreement dated as of August 26, 2003, as amended or modified, among Borrower, Bank of America, as agent and a payoff letter from syndicate of lenders (the agent for the lenders under the "Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement Agreement") has been or concurrently with the Closing Date is being terminated, and that all loans and obligations thereunder are being have been paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;full; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan documents, consents or opinions as Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2006. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) electronically (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and each Loan Party;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Notethe Initial Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence of that the Existing Credit Agreement $175,000,000 term loan facility from KeyBank and certain other lenders to Borrower has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedterminated;
(x) a duly completed Compliance Certificate as of the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies last day of certificates evidencing any stock being pledged under the Pledge Agreement on fiscal quarter of Borrower most recently ended at least 45 days prior to the Closing Date (to the extent required Date, signed by the Pledge Agreement), together with copies a Responsible Officer of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Borrower; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentdocuments, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches consents or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated opinions as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Agent or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAgent). Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) [reserved]
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of (x) SkaddenDLA Piper, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, evidence that all insurance required to be maintained pursuant a Material Adverse Effect and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effectClosing Date;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing [reserved];
(x) evidence that the Existing Credit Agreement (and all commitments thereunder) has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid terminated (and each Lender hereunder which was a “Lender” as defined in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with waives the Closing Date are being, released;
(x) requirement under Section 2.06 of the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies Existing Credit Agreement for five Business Days prior notice of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreementtermination thereof), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement , all Collateral Documents and each Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates including specimen signatures and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from duly completed Compliance Certificate as of the agent for last day of the lenders fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower;
(x) evidence that all commitments under the Credit Agreement dated May 31, 2001 between Borrower and W▇▇▇▇ Fargo Bank, National Association, (the "Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has Agreement") have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (assigned to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Agent;
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by evidence that Agent holds a valid perfected first priority security interest and lien in the applicable Loan PartiesCollateral;
(xii) the Intercreditor and Collateral Agency Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested fully executed by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madeall parties thereto; and
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as Agent, the Agents L/C Issuer, or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July May 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2005. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Northwest Pipe Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Pledge Agreement and the Subsidiary Guaranty;
(ii) a Note Notes executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate the Loan Parties is validly existing, in good standing, as applicable in their respective jurisdictions of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectformation;
(v) a such executed documents as the Administrative Agent may reasonably require to perfect the Lenders’ first priority security interest in the Collateral, subject to the Liens set forth in Schedule 7.01, including notices of grants of security interests in intellectual property to be filed with the United States Patent and Trademark Office or United States Copyright Office, filings with the United States Surface Transportation Board and stock transfer powers;
(vi) favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇ ▇▇▇▇▇▇▇▇ & LLP and ▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, as to customary matters concerning licenses and approvals required in connection with the Domestic execution, delivery and performance by the Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to validity against the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that, except as otherwise provided in Section 5.03, no such consents, licenses or approvals are so required;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, satisfied and (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could be reasonably expected to which it is have, either individually or in the aggregate, a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;Material Adverse Effect; and
(viiix) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and its legal counsel:
(i) executed counterparts of this Agreement, the Guaranty and all Collateral Documents covering all assets of Borrower, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certificates as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that Borrower is, validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Initial Financial Statements that had or could reasonably be expected to have a Material Adverse Effect;
(viiib) except as set forth in the post-Closing Letter, Agent shall have received evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixc) Agent shall have received evidence, satisfactory to Agent in its sole discretion, that as of the execution, delivery, filing and recording of the Collateral Documents, Agent shall hold a payoff letter from the agent perfected, first priority Lien in all Collateral for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance Loan, subject to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedPermitted Liens;
(xd) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding shall have received the results of a commercial finance examination Uniform Commercial Code search showing all financing statements and other documents or instruments on file against the Borrower in the Offices of the Loan PartiesSecretary of State of the State of Delaware, which shall such search to be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or no more than ten days prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment date of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.Closing; and
(e) The Administrative Agent and the Lenders shall have receivedbeen, and shall continue to be, satisfied, in their good faith discretion, that (i) the Borrower holds Marketable Title to the Borrowing Base Oil and Gas Properties, and that such ownership includes record title to an undivided net revenue interest in the production from each such Borrowing Base Oil and Gas Property that is not less than, as well as an undivided working interest in each Borrowing Base Oil and Gas Property that is not greater than (unless there is a corresponding increase in the net revenue interest attributed to such party therein), the net revenue interest therein and the Agents shall be reasonably satisfied working interest therein, respectively, attributed to the Borrower on Exhibit B, subject to the limitations and qualifications on such Exhibit (or attributed to Borrower in any Collateral Document applicable to any Oil and Gas Property that is added to the Borrowing Base Oil and Gas Properties in connection with a Consolidated balance sheet of any subsequent funding after the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, Closing Date) and (ii) at least ninety percent (90%) of the PW9 of the Proved Reserves attributable to the Borrowing Base Oil and Gas Properties are subject to the first priority Liens and security interests of the Agent, in favor of the Lenders (subject to the Texaco Lien), provided that, for purposes of closing, Agent and Lenders intend to have confirmed, to their satisfaction, (x) the status of Borrower’s title to Borrowing Base Oil and Gas Properties comprising a detailed forecast minimum of ninety percent (90%) of the PW9 (based on the most recent Borrowing Base evaluation by the Agent) of the Proved Reserves that are attributable to those Borrowing Base Oil and Gas Properties and (y) that the Agent, for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end benefit of the Fiscal Quarter ending October 31Lenders, 2010has been granted a first priority Lien and security interest in at least ninety percent (90%) of the PW9 of the Proved Reserves attributable to such Borrowing Base Oil and Gas Properties through mortgages, which deeds of trust or other collateral documentation (subject to the Texaco Lien); such determination by Agent and the Lenders, however, shall include an Availability modelnot relieve Borrower from the ongoing obligation to comply with all of its representations, Americas Consolidated income statement, balance sheet, warranties and statement of cash flow, by month, each prepared in conformity with GAAP (covenants herein and in the case Collateral Documents regarding Borrower’s title to all Borrowing Base Oil and Gas Properties and the Liens and security interests granted to the Agent for the benefit of clause (i)) and consistent with the Loan Parties’ then current practicesLenders.
(f) The Lead Borrower Any fees required to be paid on or any Subsidiary before the Closing Date, including those set forth in the Agent Fee Letter, shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000been paid.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(kh) The Agents Agent shall have received all documentation received, in form and substance reasonably satisfactory to it, such other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations includingassurances, without limitationcertificates, documents or consents related to the Patriot Actforegoing as Agent or the Required Lenders reasonably may require.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(ni) The Closing Date shall have occurred on or before July December 31, 2009. The Administrative .
(j) Agent shall notify have received such other assurances, certificates, documents, consents, evidence of perfection of all Liens securing the Lead Borrower and Obligations or opinions as Agent or the Required Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Partiesreasonably may require. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsits counsel;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released[Reserved];
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (such financial information with respect to the extent required Borrower’s fiscal year ended December 31, 2005 as may be reasonably requested by Agent and discussed with the Pledge Agreement)Borrower; provided, together that Agent shall be satisfied with copies the nature and substance of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)such information and discussions;
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretosuch information regarding litigation, each duly executed tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its subsidiaries as may be reasonably requested by Agent, the applicable Loan Partiesnature and substance of such information to be satisfactory to the Agent and its counsel;
(xii) such information regarding the Intercreditor Agreement;
Borrower’s (A) a written report regarding the results of a commercial finance examination of the Loan Partiesaccounts receivable aging, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentbacklog information, the Loan Parties (C) business segment financial performance, and their management reasonably requested by any Agent(D) tunneling job financial performance, in each case with results reasonably as of December 31, 2005, as may be requested by the Agent, the nature and substance of such information to be satisfactory to the AgentsAgent;
(xiii) Uniform Commercial Code, tax and judgment lien searches as the Agent may reasonably requires, results of which to be satisfactory to the Agent;
(xiv) results the representations and warranties of searches Borrower and each other Loan Party contained in Article V hereof or any other evidence reasonably satisfactory to the Co-Collateral Agents (Loan Document, or which are contained in each case dated any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan PartiesClosing Date, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as Agent, the Agents L/C Issuer or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31February 20, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2006. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreements, the Stock Pledge Agreement, the Negative Pledge Agreement, all other Collateral Documents and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable an opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(b) and (c) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from landlord’s subordination and access agreement executed by Borrower for each of the agent for leased real property locations of Borrower;
(x) a duly completed Compliance Certificate as of the lenders last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower;
(xi) evidence that all commitments under the Credit Agreement dated on or about August 26, 2008, and amended thereafter, among Borrower, Bank of America, as administrative agent and lender, and the other lenders named therein (the “Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has Agreement”) have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) pro forma consolidated financial statements as to Borrower, the Intercreditor AgreementGuarantors and their Subsidiaries, and forecasts prepared by management of Borrower, each in form satisfactory to Agent, of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the Closing Date;
(Axiii) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to Agent, all environmental reports, asset appraisals, field audits and such other reports, audits and certifications as requested by Agent;
(xiv) Borrower shall have obtained, and paid all required fees in connection with obtaining, a CUSIP number for the Agents and received, or substantially simultaneously with the initial Credit Extension under transactions contemplated by this Agreement and the Loan Documents, which number shall receivebe identified on the front page of this Agreement; and
(xv) such other assurances, gross proceeds of certificates, documents, consents or opinions as Agent or the Term Loans in a minimum amount of $125,000,000Required Lenders reasonably may require.
(gb) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(kd) The Agents Lenders shall have completed a due diligence investigation of Borrower and the Guarantors in scope and with results satisfactory to the Lenders, shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and the Guarantors, and shall have received all documentation such financial, business and other information required by regulatory authorities under applicable “know your customer” regarding Borrower, the Guarantors and anti-money laundering rules their respective Subsidiaries, and regulations their respective businesses, as the Lenders shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employee and the Patriot Actannual (or other audited) financial statements of Holdings (or Borrower for periods prior to fiscal year 2008) for the fiscal years ended 2007, 2008 and 2009, and interim financial statements of Holdings and its Subsidiaries dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lenders’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days before the Closing Date).
(le) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party There shall not have occurred prior to the Closing Dateany event or exist any condition since June 30, 2010, which constitutes a Material Adverse Effect.
(mf) intentionally omittedThere shall be no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower or any Guarantor, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(ng) Agent shall have received such statements in substance and form reasonably satisfactory to Agent as Agent shall reasonably require from Borrower for the purpose of compliance with any applicable regulations of the Comptroller of the Currency or the Board of Governors of the Federal Reserve System.
(h) Borrower shall have established Bank of America as its primary depositary bank, including for the maintenance of business, cash management, operating and administrative deposit accounts; provided, however, Borrower shall not be required to maintain all investment portfolio accounts, merchant settlement accounts and accounts maintained for the benefit of others with Bank of America.
(i) The Closing Date shall have occurred on or before July December 31, 2009. The Administrative Agent 2010.
(j) Borrower, on a consolidated basis with Holdings and its Subsidiaries, shall notify be not be in violation of the Lead Borrower and the Lenders of Leverage Threshold on the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by each applicable Borrower the Co-Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, validly existing, in good standing and qualified to engage in business in its state of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (xA) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties and (B) the General Counsel of the Loan Parties, each addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Co-Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that except as set forth in the Final Prospectus of Premier, Inc., dated September 25, 2013, as filed with the Securities and Exchange Commission on September 27, 2013 and each of the quarterly reports of Premier, Inc. on Form 10-Q or Form 10-Q/A, as applicable, for the quarters ended September 30, 2013, December 31, 2013 and March 31, 2014, there has been no event or circumstance since June 30, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that, a calculation of the Consolidated Total Leverage Ratio as of the Closing Date last day of the fiscal quarter of the Co-Borrowers ended on March 31, 2014;
(viii) a certificate signed by a Responsible Officer of the Co-Borrowers certifying that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Co-Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(ix) an officer’s certificate prepared by the chief financial officer or other Responsible Officer approved by the Administrative Agent of Holdings as to the financial condition, solvency and related matters of the Loan Parties and their Subsidiaries, on a Consolidated Basis, after giving effect to the transactions contemplated hereby, and the initial borrowings under the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;Documents.
(viix) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence reasonably establishing that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixxi) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (financial statements referred to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan PartiesSection 5.05;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results evidence reasonably establishing that Indebtedness for borrowed money of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory Subsidiaries existing pursuant to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case credit agreement dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the December 16, 2011 among certain Loan Parties, except for Permitted Encumbrances Parties and Liens for which termination statements ▇▇▇▇▇ Fargo Bank shall be repaid in full and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to security interests related thereto shall be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered terminated on or prior to the Closing Date pursuant to Section 6.13 hereofDate; and
(xiii) 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) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Unless waived by the Administrative Agent, the Co-Borrowers shall have paid (a) all reasonable and documented actual fees, charges and disbursements of counsels King & Spalding, LLP, counsel to the Agents Administrative Agent and the Arrangers (directly to such counsel if requested by the Administrative Agent), to the extent payable by the Borrowers hereunder and invoiced prior to on or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
Date and (mb) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31all reasonable actual due diligence expenses incurred by the Administrator Agent and the Arrangers, 2009. The in connection with the syndication of the credit facilities provided for herein and the preparation, negotiation, execution, and delivery of the Loan Documents; provided, however, the fees paid to counsel to the Administrative Agent shall notify the Lead Borrower and the Lenders of Arrangers shall in no event exceed the Closing Date, and such notice shall be conclusive and binding on amount set forth in the Loan PartiesFee Letter. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Premier, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated as of the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of formed, validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇Winston & ▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2013 that has had or could be reasonably expected to have, either individually or in the Parent.aggregate, a Material Adverse Effect; (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended December 31, 2013;
(dviii) The Co-Collateral Agents shall be reasonably satisfied with an officer’s certificate prepared by the results chief financial officer of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) Borrower attesting to the financial condition and Solvency of the Borrower and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent Borrower and its Subsidiaries Subsidiaries, taken as at a whole, respectively, after giving effect to the Fiscal Quarter ended April 30Loans to be made on the Closing Date, 2009, the other Credit Extensions related thereto and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, other transactions contemplated by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8Documents, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the Administrative Agent;
(ix) an initial Request for Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described Credit Extensions to be made on the Closing Date in this clause (ii) shall be substantially consistent accordance with the term sheet dated June 8requirements hereof; and
(x) such other assurances, 2009 relating thereto certificates, documents, consents or otherwise in form and substance opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably acceptable to the Agentsmay require.
(hb) All necessary consents Any and approvals to the transactions contemplated hereby shall have been obtained.
(i) All all fees required to be paid by the Borrowers to any of the Agents or the Arrangers payable on or before the Closing Date shall have been paid in full, and all fees required to or be simultaneously paid by with the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullproceeds of such initial Credit Extension.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid paid, or be simultaneously paying with the proceeds of such initial Credit Extension, all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents Borrower shall have received terminated the commitments of the lenders and repaid or prepaid in full all amounts outstanding under the Existing Credit Agreement (and any letters of credit outstanding thereunder shall have been cash collateralized or continued as Letters of Credit under this Agreement).
(e) There shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent and the Lenders shall have received, at least three Business Days in advance of the Closing Date, all documentation and other information instruments required by regulatory authorities with respect to the Borrower and Guarantors under applicable “know your customer” and anti-money laundering rules and regulations includingregulations, including without limitation, limitation the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred that has been reasonably requested by Lenders prior to the Closing Date.
(m) intentionally omitted.
(ng) The Closing Date Borrower shall have occurred on or before July 31purchased the Farm Credit Equities, 2009. The Administrative Agent shall notify consistent with the Lead Borrower and the Lenders requirements of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesSection 6.13. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder hereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s Lender's receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the signing Loan Party (if applicable):Closing Date) and each in form and substance satisfactory to the Lender and its legal counsel:
(i) executed counterparts of this Agreement;
(ii) a the Note executed by each applicable Borrower in favor of each Lender requesting a Notethe Borrower;
(iii) a Guaranty Agreement for each Guarantor and, where appropriate, a joinder from the spouse of each married Guarantor.
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lender may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of each Loan Party’s certificate such documents and certifications as the Lender may reasonably require to evidence that Borrower is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;; and
(vvi) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇McAfee ▇▇▇▇ & ▇▇▇▇ LLPa Professional Corportion, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement Lender may reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofrequest.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateAny fees including, (ii) the payment of all fees and other amounts due but not limited to the Credit Parties by the Borrowers on the Closing Date as required under the Loan DocumentsCommitment Fee, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Lender to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 theretoLender).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Borrower, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 the Borrower is a party;
(iv) copies of each Loan Party’s certificate such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that the Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in business in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ Ropes & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesBorrower, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit F and such other matters concerning the Domestic Loan Parties Borrower and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could be reasonably expected to which it is have, either individually or in the aggregate, a party, or (2) that all such consents, licenses Material Adverse Effect; and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedcurrent Debt Ratings;
(viii) except such other certificates and documents, consents or opinions as the Administrative Agent reasonably may require, as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor list of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly closing documents set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.Exhibit G.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Biogen Idec Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a date acceptable to the Administrative Agent) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (A) this AgreementAgreement and (B) the Guaranties;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in business in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease its incorporation or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ McGuireWoods LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit K and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has not occurred a (x) Material Adverse Effect since February 28, 2011, or (y) material adverse change in the facts and information regarding the Company and its Subsidiaries as represented to date and (C) as to the absence of any action, suit, investigation or proceeding pending, or to the knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(viii) except a duly completed Compliance Certificate as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or last day of the Canadian Agentfiscal quarter of the Company ended on May 31, as applicable2011, required under signed by a Responsible Officer of the Loan Documents have been obtained and are in effectCompany;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers an executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Request for Credit Extension;
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretothe Audited Financial Statements, each duly executed audited and accompanied by a report and opinion of the Public Accountant as to whether such financial statements are free of material misstatement, which report and opinion shall be prepared in accordance with audit standards of the Public Company Accounting Oversight Board and applicable Loan PartiesSecurities Laws and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit or with respect to the absence of material misstatement;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination unaudited consolidated balance sheet of the Loan PartiesCompany and its Subsidiaries as at May 31, which shall be reasonably satisfactory to 2011, and the Co-Collateral Agents related consolidated statements of earnings and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents cash flows for the delivery of such termination statements and releases, satisfactions and discharges have been madefiscal quarter then ended; and
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender, the New Vehicle Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Company shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder hereunder to be Consented 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
Sources: Credit Agreement (Carmax Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) electronically (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and each Loan Party;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Notethe Initial Term Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from duly completed Compliance Certificate as of the agent for last day of the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance fiscal quarter of Borrower most recently ended at least 45 days prior to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedDate, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;signed by a Responsible Officer of Borrower; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan documents, consents or opinions as Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAgent). Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Term Loan Agreement (CNL Healthcare Properties, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Bridge Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Effective Alderwoods--Subordinated Bridge Loan Agreement 29 Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement sufficient in number for distribution to each Agent, each Bridge Lender and the Borrower;
(ii) a Bridge Note executed by each applicable the Borrower in favor of each Bridge Lender requesting a NoteBridge Note prior to the date hereof;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Bridge Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s business in its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectformation;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPDay, special counsel to the Domestic Loan Parties, addressed to the Administrative each Agent and each Domestic Bridge Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsset forth in EXHIBIT E;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Bridge Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that (i) the representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V, or which are contained in any document furnished under or in connection herewith are true and correct on and as of the Parentdate of the initial Credit Extension and (ii) no Default exists, or will result from the initial Credit Extension or from the application of the proceeds therefrom and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) certificates and letters attesting to the Solvency of each Loan Party before and after giving effect to the Refinancing, from the Borrower's Chief Financial Officer;
(ix) certified copies of each of the Related Documents, duly executed by the parties thereto; Alderwoods--Subordinated Bridge Loan Agreement 30
(x) a Request for Credit Extension, relating to the initial Credit Extension;
(xi) such other assurances, certificates, documents, consents or opinions as any Agent, or any Bridge Lender reasonably may require.
(db) The Co-Collateral Agents Amendment No. 1 Effective Date shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009have occurred.
(ec) The Evidence satisfactory to the Administrative Agent shall have received, that (i) and simultaneous with the Agents Initial Credit Extension hereunder, the Borrower shall be reasonably satisfied with a Consolidated balance sheet have taken all steps required under SECTION 8.01 of the Parent and Subordinated Notes Indenture to irrevocably terminate its Subsidiaries as at obligations under the Fiscal Quarter ended April 30Subordinated Notes Indenture (except to the extent ARTICLE 8 of the Subordinated Notes Indenture expressly provides such obligations survive or may be reinstated), 2009including, and without limitation, the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and entry by the Borrower into irrevocable escrow arrangements satisfactory to the Administrative Agent for the portion payment of all sums payable to the holders of the Parent’s Fiscal Year then endedSubordinated Notes, and (ii) the Borrower shall have requested a detailed forecast for written acknowledgment from the period commencing with trustee under the Fiscal Quarter ending July 31, 2009 and ending with Subordinated Notes Indenture acknowledging the end discharge of the Fiscal Quarter ending October 31Borrower's obligations thereunder (other than any obligations expressly stated to survive in Section 8.01 of the Subordinated Notes Indenture), 2010, a copy of which acknowledgment shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, be sent to the Administrative Agent promptly upon its receipt by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicesBorrower.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(id) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Effective Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(je) The Borrowers There shall have paid all reasonable and documented feesexist no action, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to suit, investigation, litigation or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies proceeding affecting any Loan Party or any Credit of its Subsidiaries pending or, to any Loan Party's knowledge, threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect, (ii) purports to adversely affect the Refinancing or any portion thereof or the ability of the Borrower or any other Loan Party shall have occurred prior to perform their respective obligations under the Closing DateBridge Loan Documents, or (iii) purports to adversely affect the legality, validity or enforceability of any Bridge Loan Document or the consummation of the Refinancing.
(mf) intentionally omittedAll governmental authorizations and all third party consents and approvals necessary in connection with the Refinancing shall have been obtained (without the imposition of any conditions that are not acceptable to the Bridge Lenders) and shall remain in effect; all applicable waiting periods in connection with the Refinancing shall have expired without any action being taken by any Governmental Authority; and no Law shall be applicable in the judgment of the Bridge Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Refinancing or the rights of the Loan Parties freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(ng) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice Senior Credit Facility shall be conclusive rated at least BB- (stable) by S&P and binding on the at least B1 (stable) by ▇▇▇▇▇'▇. Alderwoods--Subordinated Bridge 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 (other than an Agent or the Canadian Agent) 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.31
Appears in 1 contract
Sources: Subordinated Bridge Loan Agreement (Alderwoods Group Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party as listed on Schedule 4.01(A) is duly organized or articles formed, and that each of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionthe Borrowers as listed on Schedule 4.01(A) and a certificate of is validly existing, in good standing (and qualified to engage in business in each of the jurisdictions’ as listed on Schedule 4.01(A) where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to Associate General Counsel of the Domestic Loan PartiesCompany, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since December 31, 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date;
(viii) except a duly completed Compliance Certificate as set forth in of the post-last day of the fiscal quarter of the Company most recently ended prior to the Closing LetterDate, signed by a Responsible Officer of the Company;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixx) a payoff letter from the agent for the lenders all principal and interest owing under the Existing Credit Prior Agreement reasonably satisfactory in form and substance shall have been refinanced pursuant to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedthis Agreement, all obligations thereunder are being paid in full (except commitments to extend credit under the extent expressly set forth therein)Prior Agreement shall have been terminated, and all Liens securing obligations under the Existing Credit Agreement fees and other amounts outstanding thereunder shall have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed been paid in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);full; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect The Company shall have paid to (i) the first funding under Lenders, the Loans (if any) Administrative Agent, the Joint Lead Arrangers and the Joint Bookrunner all fees required to be paid and all reasonable expenses for which invoices have been presented, on or before the Closing Date.
(c) Unless waived by the Administrative Agent, (ii) the payment Company shall have paid all fees, charges and disbursements of all fees and other amounts due counsel to the Credit Parties by the Borrowers on the Closing Date Administrative Agent as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31August 10, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2012. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document of which it has received a copy (including receipt by electronic means) or other matter required thereunder as to which it has knowledge to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies facsimiles (followed promptly by originals) or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to Administrative Agent, each Lender, Parent, and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP LLP, counsel to the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan PartiesBorrower and Parent, each addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as Administrative Agent may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are of any Governmental Authority required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 6.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Report and Compliance Certificate certifying compliance with the financial covenants set forth in Section 9.15 (other than Sections 9.15(e) and 9.15(f)), in each case prepared as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated proforma basis are Solventand signed by a Responsible Officer of Parent, for itself and (D) that this Agreement and all Obligations satisfy the requirements on behalf of section 3.3 of the Senior Note IndentureBorrower;
(viiix) intentionally omittedthe Property Information with respect to each of the Initial Borrowing Base Properties;
(viiix) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretocertificates, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiesdocuments, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any instruments or information as Administrative Agent, in each case with results L/C Issuer, Swing Line Lender or Required Lenders may reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofrequire.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by pursuant to the Borrowers to any of the Agents or the Arrangers Loan Documents on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) required to be paid pursuant to the Agents and Arrangers Loan Documents to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAdministrative Agent).
(kd) The Agents Administrative Agent and Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” be reasonably satisfied with the Historical Financial Statements and anti-money laundering rules and regulations including, without limitation, the Patriot ActPro Forma Financial Statements.
(le) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party The IPO shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Partiesoccurred. Without limiting the generality of the provisions of the last paragraph of Section 9.0411.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The This Agreement, and the obligation of the L/C Issuer and each Lender to make its 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 telecopies (or other electronic image scan transmission (e.g.form, “pdf” or “tif” via e-mail) (in any case followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (or, if satisfactory to the Agent with respect to any of the following delivered in connection with the Existing Credit Agreement, the Closing Date under the Existing Credit Agreement, and in the case of certificates of governmental officials, a recent date before the Closing Date (or, as applicable):, a recent date before the Closing Date under the Existing Credit Agreement) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesParties acceptable to Agent, addressed to Agent on behalf of the Administrative Agent and each Domestic LenderLenders, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying that, except as expressly disclosed in any Schedule to this Agreement, (A) the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) there has been no other event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Existing Credit Agreement has been or concurrently with Administrative Agent (on behalf of itself and the Closing Date is being terminated, all obligations thereunder are being paid in full Lenders) shall have a valid and perfected first priority (except with respect to Permitted Liens) Lien on the extent expressly set forth thereinCollateral (other than Excluded Property), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoreports, each duly executed by assurances, certificates, documents, consents or opinions the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAgent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31June 4, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2010. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Ats Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) electronically transmitted copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower Agent;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) executed counterparts of each other Loan Document;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies such documents and certifications as of a recent date as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of (x) SkaddenJones, ArpsWalker, SlateWaechter, Poitevent, Carrère & ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPL.L.P., special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties in form and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effecta Material Adverse Effect;
(ix) a payoff letter certificate attesting to the Solvency of the Loan Parties, taken as a whole, before and after giving effect to the extension of Loans hereunder, from the agent for chief financial officer of the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedBorrower Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies all commitments of certificates evidencing any stock being pledged lenders under the Pledge Prior Credit Agreement on the Closing Date (that are not parties to the extent required this Agreement shall have been terminated and all commitments thereunder of each Lender that is a party to this Agreement shall be evidenced only by the Pledge this Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);. and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower Swing Line Lender or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance Lender reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtainedmay require.
(i) All fees required to be paid by to the Borrowers to any of the Agents or the Arrangers Administrative Agent and MLPF&S on or before the Closing Date shall have been paid in full, and (ii) all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31February 15, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2011. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Tidewater Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender Bank to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentBank’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Bank and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Bank and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a NoteBank;
(iii) executed counterparts of the Guaranty, sufficient in number for distribution to Bank and Borrower;
(iv) executed counterparts of the Contribution Agreement, sufficient in number for distribution to Bank and Borrower;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Bank may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivvi) copies of such documents and certifications as Bank may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) that Borrower and a certificate of each Guarantor is, validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvii) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇Durham ▇▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇, special PC, counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic LenderBank, as to customary matters concerning the Domestic valid existence, good standing, requisite power and authority, due authorization and non-contravention of Organization Documents of each Loan Parties Party and the Loan Documents; due execution and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and delivery of the Loan Documents;
(viviii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of Borrower certifying (A) that the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solventconditions specified in Sections 4.02(a) and (b) have been satisfied, and (DB) that this Agreement and all Obligations satisfy there has been no event or circumstance since the requirements of section 3.3 date of the Senior Note IndentureAudited Financial Statements that has had or could be reasonably be expected to have a Material Adverse Effect;
(viix) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be documents, consents or opinions as Bank reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofmay require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Bank, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Bank (directly to such counsel if requested by Bank) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerBank).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31April 29, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 thereto2011.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Administrative Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of certified resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except Party is qualified to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;do business.
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special LLP and local counsel reasonably satisfactory to the Domestic Loan PartiesAdministrative Agent, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (Aa) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (Cb) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (a) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (b) that there has been no event or circumstance since December 31, 2004 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (c) stating the Total Capitalization Ratio as of December 31, 2004 (or, in the alternative, stating the Borrower has elected to have the Applicable Rate determined on the basis of the S&P Rating and stating the then current S&P Rating);
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from Certificate dated as of the agent Closing Date, signed by a Responsible Officer of Borrower, stating that no Internal Control Event has occurred since December 31, 2004 which involves (A) an impact upon EBITDA in an amount which is in excess of $1,000,000, or (B) fraud, error or irregularity on the part of any Responsible Official of the Borrower or its Significant Subsidiaries or any other management staff of Borrower and its Significant Subsidiaries having responsibility for the lenders design or supervision of internal controls or the preparation of financial statements of Borrower and its Subsidiaries;
(x) evidence that all commitments under the Existing Bank of America Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Union Bank Agreement has have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Bank of America Credit Agreement and the Existing Union Bank Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoA certificate signed by a Responsible Officer of Borrower certifying that, each duly executed by as of the applicable Loan PartiesClosing Date, there is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened against Borrower or any of its Subsidiaries in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination A copy of the Loan Parties, which shall be reasonably satisfactory to the CoBorrower’s annual report on form 10-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents K for the delivery of such termination statements and releasesyear ended December 31, satisfactions and discharges have been made2004; and
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as Administrative Agent, the Agents L/C Issuer, Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of Borrower, each dated the signing Loan Party Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) fully executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender and Borrower;
(ii) a Note Notes for the Loans executed by each applicable Borrower B▇▇▇▇▇▇▇ in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower as Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Borrower is a party;
(iv) copies of each Loan Party’s certificate such documents and certifications as Administrative Agent may reasonably require to evidence that Borrower is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, counsel to B▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsset forth in Exhibit B;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, (B) all governmental, shareholder and third party consents and approvals necessary for Borrower to enter into the Loan Documents and perform thereunder, if any, have been obtained, except where the failure to obtain would not reasonably be expected to have a Material Adverse Effect, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) to such Responsible Officer’s knowledge, no Default or Event of Default exists, (2) all representations and warranties contained herein are true and correct in all material respects, and (3) Borrower is in pro forma compliance with each of the financial covenants set forth in Section 7.10 (and including detailed calculations of each such financial covenant) for the fiscal quarter ending September 30, 2021 (which calculation has been delivered to Administrative Agent prior to Closing Date); (D) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection will contemporaneously with the execution, delivery Closing Date be satisfied; and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (CE) that, as to such Responsible Officer’s knowledge, there has been no event or circumstance since the date of the Closing Date after giving effect Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the transactions contemplated herebyaggregate, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note IndentureMaterial Adverse Effect;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xvviii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents or reasonably requested by the Agents consents as Administrative Agent, any L/C Issuer or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateThere shall not have occurred since December 31, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents2020 any event or condition that has had or would be reasonably expected, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid either individually or in the ordinary course of business and without acceleration of salesaggregate, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000to have a Material Adverse Effect, as determined by Administrative Agent.
(c) The Administrative Agent and the Canadian Agent There shall have received a Borrowing Base Certificate dated the Closing Datenot exist any action, relating suit, investigation, or proceeding pending, or to the month ended on June 30knowledge of B▇▇▇▇▇▇▇, 2009threatened in writing, and executed in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect, as determined by a Responsible Officer of the Lead Borrower or the ParentAdministrative Agent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required reimbursable expenses for which invoices have been presented to be paid by the Borrowers to the Lenders Borrower on or before the Closing Date shall have been paid in fullpaid.
(je) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced to Borrower prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(ki) The Agents Upon the reasonable request of any Lender made at least five days prior to the Closing Date, Borrower shall have received all provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least five days prior to the Closing Date and (lii) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least five 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.
(mg) intentionally omitted.
(n) The Closing Date Borrower shall have occurred on terminated the “Aggregate Revolver Commitments” under the BoA Loan Agreement or before July 31, 2009such Aggregate Revolver Commitments shall have otherwise expired or terminated pursuant to the terms of the BoA Loan Agreement. Each of the Lenders hereunder that is a Lender under the BoA Loan Agreement hereby waives any requirement set forth in Section 2.05 of the BoA Loan Agreement that Borrower provide any notice prior to termination of the Aggregate Revolver Commitments under the BofA Loan Agreement. The Administrative Agent waiver set forth herein is limited as provided herein and shall notify not be deemed to be a waiver or consent to any deviation from the Lead Borrower and the Lenders terms of the Closing DateBoA Loan Agreement, and such notice shall be conclusive and binding on the BoA Loan PartiesDocuments, this Agreement or the other Loan Documents. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Franklin Street Properties Corp /Ma/)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
: Unless waived by all the Lenders (aor by the Administrative Agent with respect to immaterial matters or items specified in clause (iii) The or (iv) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):
(ior, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel: executed counterparts of this Agreement;
(ii) a Note Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; Notes executed by each applicable the Borrower in favor of each Lender requesting such a Note;
(iii) , each in a principal amount equal to such Lender’s Commitment; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) as the authority Administrative Agent may require to establish the identities of each Loan Party to enter into this Agreement and verify the other Loan Documents to which such Loan Party is a party and (B) 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 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, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate Organization Documents, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, and/or qualification to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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.tax clearance certificates;
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) fully executed counterparts of this Agreement, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement CSI and the other Loan Documents to which such Loan Party is a party and (B) Borrower as 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 a party;
(iv) copies such documents and certifications as Agent may reasonably require to evidence that each of CSI and the Borrower is duly organized or formed, and that each such Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning CSI and the Domestic Loan Parties Borrower and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that (A) the Initial Public Offering shall have been, or substantially simultaneously with the Closing Date shall be, consummated in accordance with the terms of the final agreements and other documents (including all insurance required to be maintained pursuant schedules and exhibits thereto) that contain terms that are material to the Loan Documents and all endorsements in favor structure of the Administrative Agent or Initial Public Offering, in compliance with applicable Laws and regulatory approvals and (B) the Canadian Agent, as applicable, required under aggregate Net Proceeds of the Loan Documents Initial Public Offering shall have been obtained and are in effectamounted to at least $95,000,000;
(ix) a payoff letter from duly completed pro forma Compliance Certificate as of the agent for last day of the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance fiscal quarter of C▇▇▇▇▇▇ S▇▇▇▇▇▇ Inc. Predecessor most recently ended prior to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedDate, all obligations thereunder are being paid in full (except giving effect to the extent expressly set forth therein)Initial Public Offering, and all Liens securing obligations under the Existing Credit Agreement have been, signed by a Responsible Officer of Borrower or concurrently with the Closing Date are being, releasedCSI;
(x) evidence of the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies ownership by CSI, directly or indirectly, of certificates evidencing any stock being pledged under not less than the Pledge Agreement on percentage of the Closing Date (to Partnership Units of Borrower indicated in the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Registration Statement; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentdocuments, consents or opinions as Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July December 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2005. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party or the Specified Designated Borrower, as applicable, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Company Guaranty and the Domestic Subsidiary Guaranty, each sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) a Note Notes executed by each applicable Borrower the Company in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) Specified Designated Borrower 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 or the Specified Designated Borrower is a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party and the Specified Designated Borrower is duly organized or articles of incorporation formed, and bylaws that each Loan Party and the Specified Designated Borrower is validly existing, in good standing and qualified (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the case of the Specified Designated Borrower, such applicable jurisdictionforeign equivalent) from such Loan Party’s jurisdiction of organization and from to engage in business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of (xi) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇, LLP, counsels counsel to the Canadian Loan Parties, and in-house counsel to the Company, and (ii) ▇▇▇▇▇▇▇▇, Australian counsel to the Loan Parties and the Specified Designated Borrower, each addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary such matters concerning the Canadian Loan Parties and the Specified Designated Borrower, respectively, and the Loan DocumentsDocuments as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party and the Specified Designated Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party or the Specified Designated Borrower, as applicable, and the validity against such Loan Party or the Specified Designated Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Company certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, satisfied and (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could be reasonably expected to which it is have, either individually or in the aggregate, a party, or (2) that all such consents, licenses Material Adverse Effect; and approvals have been obtained and are in full force and effect, (C) that, a calculation of the Consolidated Leverage Ratio as of the Closing Date after giving effect last day of the fiscal quarter of the Company most recently ended prior to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedClosing Date;
(viii) except as set forth The Administrative Agent shall have received, in form and substance acceptable to it, a fully executed copy of the Foreign Subsidiary Pledge Agreement and each other applicable Foreign Subsidiary Pledge Document, together with evidence that all filings necessary or advisable, in the post-Closing Letterreasonable judgment of the Administrative Agent, for the perfection and priority of the Liens thereof;
(ix) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on March 31, 2011, signed by a Responsible Officer of the Company;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixxi) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Existing Credit Agreement has Agreements have been or concurrently with the Closing Date is are being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) a Solvency Certificate executed by the Intercreditor Agreementchief financial officer of the Company;
(Axiii) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory financial statements referred to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;Section 5.05; and
(xiv) results of searches such other assurances, certificates, documents, consents or other evidence reasonably satisfactory to opinions as the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to Administrative Agent, the Co-Collateral Agents) indicating L/C Issuer, the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all All accrued fees and other amounts due to expenses of the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated Joint Lead Arrangers (including the Closing Datereasonable fees and expenses of ▇▇▇▇▇ Day, relating to counsel for the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedand MLPFS), (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) paid. The Borrowers shall have paid all reasonable items due and documented fees, charges and disbursements of counsels to payable under the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to Fee Letters on or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to before the Closing Date.
(mc) intentionally omittedAll Governmental Authority, shareholder and other consents and approvals necessary or, in the opinion of the Administrative Agent, desirable in connection with the Transactions shall have been received and shall be in full force and effect and all third party consents shall have been received.
(nd) The Closing Date There shall have occurred on not be any action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened, in any court or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall any arbitrator or Governmental Authority that would reasonably be conclusive and binding on the Loan Partiesexpected to have a Material Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Co-Administrative Agent’s Agents’ receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (Party, if applicable):, each dated such date (or, in the case of certificates of governmental officials, a recent date before such date) and each in form and substance satisfactory to the Co-Administrative Agents and the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to each Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) as the authority of each Loan Party to enter into this Agreement Co-Administrative Agents and the other Loan Documents to which such Loan Party is a party and (B) Lenders may reasonably 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 a party or is to be a party;
(iv) copies of such documents and certifications as the Co-Administrative Agents and the Lenders may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPDay, special counsel to the Domestic Loan Parties, addressed to the Co-Administrative Agent Agents and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties in form and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsCo-Administrative Agents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying that there has been no event or circumstance since the Parentdate of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a certificate attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis, after giving effect to the consummation of the transaction contemplated hereby, from the Borrower’s Chief Financial Officer or Executive Vice President-Finance and Administration; and
(ix) such other assurances, certificates, documents, consents or opinions as the Co-Administrative Agents may reasonably require.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(ib) All fees required to be paid by the Borrowers to any of Borrower in connection with the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders Loan Documents on or before the Closing Date shall have been paid in full.
(jc) The Borrowers shall have paid all All accrued reasonable and documented fees, charges and disbursements expenses of counsels to the Co-Administrative Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing DateLenders, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, Attorney Costs for which the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred Borrower has received a reasonably detailed invoice at least 5 days prior to the Closing Date, shall have been paid in full.
(md) intentionally omittedThe absence of any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that (i) could reasonably be expected to materially and adversely affect the Borrower and its Subsidiaries, (ii) purports to adversely affect the ability of the Borrower or any other Loan Party to perform their respective obligations under the Loan Documents, or (iii) purports to affect the legality, validity or enforceability of any Loan Document.
(ne) The Closing Date There shall not have occurred on a material adverse change in the business, assets, liabilities (actual or before July contingent), operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole since December 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 thereto2008.
Appears in 1 contract
Sources: Credit Agreement (Timken Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) each Security Document listed in the Security Schedule;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that the Borrower, each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectChange and each jurisdiction in which such Loan Party owns property subject to the Security Documents;
(vvi) a favorable opinion of (xi) Skadden, Arps, Slate, Jenkens & G▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, a Professional Corporation, special Texas counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit H and such other matters concerning the Domestic Loan Parties and the Loan Documents; Documents as the Required Lenders may reasonably request and (yii) Fraser ▇▇▇▇▇▇ Casgrain LLP local counsel for the states of Alabama, Florida, Louisiana and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels Mississippi satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vivii) a A certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, licenses or approvals are so required;
(viii) The Initial Financial Statements;
(ix) Financial projections for Borrower and its Subsidiaries through May 2008, in form and substance reasonably satisfactory to Administrative Agent;
(x) Certificates or binders evidencing Loan Parties' insurance in effect on the date hereof naming Administrative Agent as loss payee and additional insured;
(xi) A certificate signed by the chief executive officer of General Partner in form and detail acceptable to Administrative Agent confirming the insurance that is in effect as of the date hereof and certifying that such insurance is customary for the businesses conducted by Loan Parties and is in compliance with the requirements of this Agreement;
(xii) Certificates from the chief financial officer of General Partner, in substantially the form of Exhibit J hereto, attesting to the Solvency of each Loan Party before and after giving effect to the transactions contemplated by this Agreement;
(xiii) A Risk Management Policy, satisfactory to Required Lenders shall have been adopted by Loan Parties (the "Risk Management Policy");
(xiv) The Borrowing Base (based on the Borrowing Base Report as of May 25, 2004) shall be at least $15,000,000 more than the initial Outstanding Working Capital Amount on the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are SolventWorking Capital Loans and Letters of Credit requested for such date, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required General Partner shall have delivered to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are a Borrowing Base Report in effectreasonable detail demonstrating compliance with this requirement;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed A certificate signed by a Responsible Officer of the Lead Borrower or the Parent.
certifying (dA) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 4.01Sections 4.02(a), each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented tob), approved or accepted or to be satisfied with(c), 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.and
Appears in 1 contract
Sources: Credit Agreement (Genesis Energy Lp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party as listed on Schedule 4.01(a) is duly organized or articles formed, and that each of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionthe Borrowers’ as listed on Schedule 4.01(a) and a certificate of is validly existing, in good standing (and qualified to engage in business in each of the jurisdictions’ as listed on Schedule 4.01(a) where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, P▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to Associate General Counsel of the Domestic Loan PartiesCompany, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date;
(viii) except a duly completed Compliance Certificate as set forth in of the post-last day of the fiscal quarter of the Company most recently ended prior to the Closing LetterDate, signed by a Responsible Officer of the Company;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixx) a payoff letter from the agent for the lenders all principal and interest owing under the Existing Credit Prior Agreement reasonably satisfactory in form and substance shall have been refinanced pursuant to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)this Agreement, and all Liens securing obligations under the Existing Credit Agreement fees and other amounts outstanding thereunder shall have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed been paid in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);full; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect The Company shall have paid to (i) the first funding under Lenders, the Loans (if any) Administrative Agent, the Joint Lead Arrangers and the Joint Bookrunner all fees required to be paid and all reasonable expenses for which invoices have been presented, on or before the Closing Date.
(c) Unless waived by the Administrative Agent, (ii) the payment Company shall have paid all fees, charges and disbursements of all fees and other amounts due counsel to the Credit Parties by the Borrowers on the Closing Date Administrative Agent as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July August 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2007. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies (or other electronic image scan transmission (e.g.form, “pdf” or “tif” via e-mail) (in any case followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesParties acceptable to Agent, addressed to Agent on behalf of the Administrative Agent and each Domestic LenderLenders, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying that, except as expressly disclosed in any Schedule to this Agreement, (A) the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) there has been no other event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) evidence that the Administrative Agent (on behalf of itself and the Lenders) shall have a payoff letter from valid and perfected first priority (except with respect to Permitted Liens) Lien on the agent Collateral (other than Excluded Property);
(x) a duly completed Compliance Certificate as of December 31, 2006 (the calculations therein to give pro forma effect to the ATSI Acquisition as if such transaction had been consummated prior to January 1, 2006), signed by a Responsible Officer of Borrower;
(xi) (A) the Audited Financial Statements, (B) pro forma consolidated and consolidating balance sheets of the Borrower and its Subsidiaries (including ATSI) for the lenders under fiscal year ended December 31, 2006, and the Existing Credit Agreement reasonably satisfactory in form related consolidated and substance consolidating statements of income or operations, shareholders’ equity and cash flows for the twelve months then ended giving effect to the Agents evidencing ATSI Acquisition all prepared in accordance with GAAP, and (C) quarterly financial forecasts of the Borrower and its Subsidiaries, on a consolidated and consolidating basis, prepared by management of the Borrower including balance sheets and related statements of income or operations, shareholders’ equity and cash flows for (1) the fiscal quarter of the Borrower ended on March 31, 2007, and (2) the next eight (8) fiscal quarters of the Borrower thereafter, in each case certified by the chief financial officer of the Borrower;
(xii) accounts receivable aging reports, accounts payable aging reports and contract backlog reports of the Borrower, its Subsidiaries and any other Persons known by the Borrower to be a target of an Acquisition by the Borrower (or a Subsidiary) on the Closing Date;
(xiii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;; and
(xiv) results of searches all field audits and such other reports, assurances, certificates, documents, consents or other evidence reasonably satisfactory to opinions as Agent, the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan PartiesL/C Issuer, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) The Agent’s Fee, the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees Upfront Fee and any other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31June 4, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2007. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Ats Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Borrower, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 the Borrower is a party;
(iv) copies of each Loan Party’s certificate such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that the Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 EffectIllinois;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ Sidley Austin LLP, special counsel to the Domestic Loan PartiesBorrower, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit F and such other matters concerning the Domestic Loan Parties Borrower and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to Borrower as of the Agents, Closing Date certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfiedsatisfied or waived (which such waiver must be in writing), (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could reasonably be expected to which it is have, either individually or in the aggregate, a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effectMaterial Adverse Effect, (C) thatthat neither the Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, as of either individually or in the Closing Date after giving effect aggregate, reasonably be expected to the transactions contemplated hereby, the Loan Parties on have a consolidated basis are SolventMaterial Adverse Effect, and (D) that this Agreement the Borrower has disclosed to the Administrative Agent and the Lenders all Obligations satisfy matters known to any Responsible Officer that, individually or in the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedaggregate, could reasonably be expected to result in a Material Adverse Effect;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing LetterDate, signed by a Responsible Officer of the Borrower, certifying as to no Default under the terms of this Agreement and evidencing compliance with the Section 7.10;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;; CREDIT AGREEMENT — Page 58
(ixx) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full ;
(except to the extent expressly set forth therein), and all Liens securing obligations under xi) evidence that the Existing U.S. Cellular Credit Agreement have been, has been or concurrently with the Closing Date are beingis being terminated and concurrent consummation of a related facility among United States Cellular Corporation, released;
Toronto Dominion (xNew York) LLC, as administrative agent and the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Partieslenders party thereto;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results delivery of a commercial finance examination duly completed and executed Federal Reserve Form U-1, Statement of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested Purpose for an Extension of Credit Secured by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madeMargin Stock; and
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers Borrower pursuant to any of the Agents or the Arrangers Fee Letters on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented invoiced fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such invoiced fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any the Administrative Agent or Arrangerin accordance with the terms of this Agreement).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31January 15, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2011. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (vi) or (vii) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Committed Loan Notes executed by each applicable the Borrower in favor of each Lender requesting which requests a Note, each in a principal amount equal to such Lender’s Commitment;
(iii) the Collateral Documents;
(iv) such evidence as the Administrative Agent may reasonably require to verify that it holds a valid perfected first priority security interest and lien in the Collateral;
(v) this item intentionally left blank;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) as the authority Administrative Agent may require to establish the identities of each Loan Party to enter into this Agreement and verify the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivvii) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate Organization Documents, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, and/or qualification to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectbusiness;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, and (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements which has or could be reasonably expected to which it is have a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effectMaterial Adverse Effect;
(ix) a payoff letter from an opinion of counsel to each Loan Party substantially in the agent for the lenders under the Existing Credit Agreement reasonably satisfactory form of Exhibit G in form and substance satisfactory to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;Administrative Agent; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Administrative Agent) 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
Sources: Credit Agreement (Flir Systems Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from evidence that all commitments under the agent for Credit Agreement dated September 26, 2005 among Borrower, the Agent, the lenders under party thereto (the “Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has Agreement”) have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and certified copies of certificates evidencing any stock being pledged under the Pledge Agreement on Uniform Commercial Code search reports dated a date reasonably near to the Closing Date Date, listing all effective financing statements which name any Loan Party (to the extent required by the Pledge Agreement)under their present names and any previous names) as debtors, together with (a) copies of undated stock powers executed such financing statements, (b) payoff letters evidencing repayment in blankfull of all Indebtedness to be repaid, each duly executed the termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing (other than Liens permitted by Section 7.01) and (c) such other Uniform Commercial Code termination statements as the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);may reasonably request; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentdocuments, consents or opinions as Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31August 14, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Celadon Group Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension Loan 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) Pledge Agreements with respect to all Equity Interest Collateral;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of Guarantors is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda favorable opinion of Jaffe, Raitt, Heuer and ▇▇▇▇▇, P.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, a Material Adverse Effect, and (C) a calculation of the Leverage Ratio as of September 30, 2012;
(ix) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2012, signed by a Responsible Officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixxi) a payoff letter from evidence that all Liens (other than Liens securing the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form Loans) encumbering all Equity Interest Collateral and substance to the Agents evidencing that the Existing Credit Agreement has any Borrowing Base Property have been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;; and
(xii) such other assurances, certificates, documents, consents or opinions as the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Administrative Agent or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the followingfollowing items (except those items that are expressly permitted to be delivered after the Closing Date pursuant to the Post-Closing Agreement), each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing applicable Loan Party Party, each dated as of the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent in its discretion:
(i) executed counterparts of this AgreementAgreement and each of the Security Instruments;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s business in its jurisdiction of organization and from each in any other jurisdiction where such Loan Party’s ownership, lease or operation of properties or in which the conduct of its business requires such qualification, except to the extent that failure to be so qualify in such jurisdiction qualified could not reasonably be expected to have a Material Adverse Effect, including certified copies of such Loan Party’s Organization Documents, agreements among holders of Equity Interests, certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, and acceptable local counsel to the Loan Parties, each addressed to the Canadian Administrative Agent and each Canadian LenderLender and their successors and assigns, as to customary the matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Administrative Agent may reasonably request;
(vi) a certificate signed by a certificates of Responsible Officer Officers of the Lead Borrower, satisfactory in form and substance to Borrower Agent or the Agents, certifying applicable Loan Parties either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no identifying all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any Loan Party each Borrower and the validity against each such Loan Party of the Loan Documents to which it is a party, or (2) and stating that all such consents, licenses and approvals have been obtained and are shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 5.02(a) and 5.02(b) have been satisfied and (B) as to the matters described in Section 5.01(d) and 5.01(j);
(viii) (A) audited financial statements of the Consolidated Group for each of the three (3) fiscal years immediately preceding the Closing Date, (B) unaudited interim financial statements for the Consolidated Group as of November 30, 2020, and (C) financial projections of the Consolidated Group for the next three (3) fiscal years;
(ix) a certificate signed by the chief financial officer or, chief accounting officer of the Borrower Agent certifying that, as of the Closing Date after giving effect to the transactions contemplated hereby, entering into of the Loan Parties on Documents and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan Parties, taken as a consolidated basis whole, are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(viix) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and all is in effect (including, without limitation, the related insurance policy endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Partiesan initial Borrowing Base Certificate;
(xii) the Intercreditor Agreementinitial written notice of Borrowing;
(Axiii) a written report regarding delivery of Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the results of a commercial finance examination Liens of the Loan PartiesAdministrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, which shall and such other documents and/or evidence of other actions as may be reasonably satisfactory necessary under applicable law to perfect the Co-Liens of the Administrative Agent under such Security Instruments as a first priority Lien (or in and to such other Collateral Agents and (B) background checks on as the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the AgentsAdministrative Agent may require;
(xiv) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent and Lenders;
(xv) evidence of searches or the payment in full and cancellation of the Existing Credit Facility, including terminations of Uniform Commercial Code financing statements filed in connection with the Existing Credit Agreement and other evidence reasonably of lien releases and other related matters on terms acceptable to the Administrative Agent;
(xvi) evidence satisfactory to the Co-Collateral Agents Administrative Agent of the consummation (in each case dated as compliance with all applicable laws and regulations, with the receipt of a date reasonably satisfactory to the Co-Collateral Agentsall material governmental, shareholder and third party consents and approvals relating thereto) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with Transactions;
(xvii) executed counterparts of the initial extension of credit hereunder or other arrangements reasonably satisfactory to the CoPost-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madeClosing Agreement; and
(xvxviii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the Letter of Credit Issuer, the Swing Line Lender or the Canadian AgentRequired Lenders may reasonably require, as applicableincluding, without limitation, all documents on the closing checklist last delivered by Administrative Agent to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under counsel for the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofParties.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents Administrative Agent shall be satisfied, in its reasonable discretion, that after giving effect to (i) the initial Credit Extension hereunder, (ii) consummation of the Transactions and payment of all fees and expenses in connection therewith and (iii) any payables stretched beyond their customary historical levels, Availability shall be at least $15,000,000.
(e) On the Closing Date, after giving effect to the Transaction, the capital structure, corporate structure, and management of the Loan Parties and their Subsidiaries is satisfactory to each of the Lenders, in its discretion.
(f) (i) at least five (5) days prior to the Closing Date, to the extent a Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and requested by any Lender, each such requesting Lender(s) shall have received a Beneficial Ownership Certification in relation to such Borrower, in form and substance reasonably satisfactory to each such requesting Lender and (ii) each of the Lenders shall have received all documentation requested disclosures and other information required by regulatory authorities under applicable related to “know your customer” and anti-money laundering rules and regulations regulations, including the PATRIOT Act.
(g) The Administrative Agent shall have completed all due diligence with respect to the Loan Parties, including a review of historical and projected financial statements and the Consolidated Group’s financial model, insurance review, management background checks and other confirmatory third party due diligence (including, without limitation, a collateral field audit and an inventory appraisal), in each case, as applicable, conducted by third parties acceptable to the Patriot ActAdministrative Agent in its discretion, and the results of which shall be satisfactory to the Administrative Agent in its discretion.
(lh) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify be satisfied, in its discretion, with the Lead Borrower resolution of all legal, tax and regulatory matters relating to this Agreement and the Lenders Transactions.
(i) No event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect, shall have occurred since the date of the most recent audited financial statements referenced in Section 5.01(a)(viii)(A) (and, in addition, since the date of the unaudited financial statements referenced in Section 5.01(a)(viii)(B).
(j) The representations and warranties of the Loan Parties which are contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time prior to or on the Closing Date, shall be true and correct in all respects on and as of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel and each of the Lenders:
(i) executed counterparts of this Agreement, the Parent Guaranty and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowers;
(ii) a Note executed by each the applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) that each Borrower and a certificate of each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect, including, certified copies of each Borrower’s Organization Documents, certificates of good standing and/or qualification to engage in business and tax clearance certificates;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Required Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that, except as disclosed in any filings made with the SEC, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens Liens, if any, securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xvix) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all Any fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Company shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed redeem to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the L/C Issuer and each Lender to make its 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 originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) pdf copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower and executed counterparts of the Advisor Fee Subordination Agreement;
(ii) a Note Notes executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in business in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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;formation.
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) that, after giving effect to all requested Credit Extensions to be made on the Closing Date, the Total Outstandings shall not exceed the Borrowing Base as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedDate;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing Letterlast day of the fiscal quarter of the Borrower ended on September 30, 2010, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixx) a payoff letter from evidence that the agent for Credit Agreement dated as of May 23, 2008, among the Borrower, the lenders under party thereto and Bank of America, N.A., as administrative agent, swing line lender and letter of credit issuer (the “Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement Agreement”), has been or concurrently with the Closing Date is being terminated, all obligations amounts owing thereunder are being have been paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Cole Credit Property Trust II Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent in form and substance satisfactory to the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Borrower, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Revolving Loan Notes executed by each applicable the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 the Borrower is a party;
(ivv) copies of each Loan Party’s certificate such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that the Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization business in Nevada and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 EffectTexas;
(vvi) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & and ▇▇▇▇ ▇▇, LLP, special counsel to the Domestic Loan PartiesBorrower, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties Borrower and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsits counsel may reasonably request;
(vivii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, and (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could be reasonably expected to which it is have, either individually or in the aggregate, a party, or Material Adverse Effect;
(2ix) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) thatUCC searches, as of the Closing Date after giving effect a period ending reasonably satisfactory to the transactions contemplated herebyAdministrative Agent, listing all effective financing statements which name the Loan Parties on a consolidated basis are SolventBorrower or any of its Subsidiaries as debtor, and (D) that this Agreement and all Obligations satisfy the requirements together with copies of section 3.3 of the Senior Note Indenturesuch financing statements;
(viix) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have Section 6.04 has been obtained and are is in effect;
(ixxi) financial projections for a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with period of five Fiscal Years after the Closing Date is being terminatedprepared by management of the Borrower, all obligations thereunder are being paid in full (except form satisfactory to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid The fee set forth in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer invitation letter of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) to each Lender and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All other fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in fullpaid, and all fees required to the Fee Letter shall be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullfull force and effect.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels the Administrative Agent (directly to such counsel if requested by the Agents and Arrangers Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July October 31, 2009. The Administrative Agent 2006.
(e) Simultaneously with the initial Loan under this Agreement, the financial institutions under the Existing Credit Agreement shall notify be paid all amounts owing them under the Lead Borrower Existing Credit Agreement and the Lenders of the Closing Date, and such notice Existing Credit Agreement shall be conclusive and binding on the Loan Partiesconcurrently terminated. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Gruma Sa De Cv)
Conditions of Initial Credit Extension. The Except for the delayed delivery provided in Section 4.03, the obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and all Collateral Documents, sufficient in number for distribution to Administrative Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties acceptable to Administrative Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) certified copies of Uniform Commercial Code search reports dated a payoff letter from the agent for the lenders under the Existing Credit Agreement date reasonably satisfactory in form and substance near to the Agents Closing Date, listing all effective financing statements which name any Loan Party (under their present names and any previous names) as debtors, together with (a) copies of such financing statements, (b) payoff letters evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid repayment in full (except of all Indebtedness to be repaid, the extent expressly set forth therein), termination of all agreements relating thereto and the release of all Liens securing obligations under granted in connection therewith, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;foregoing (other than Liens permitted by Section 7.01) and (c) such other Uniform Commercial Code termination statements as Administrative Agent may reasonably request; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretodocuments, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentconsents or opinions as Administrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAdministrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31December 18, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2014. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Celadon Group Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its respective 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 telecopies facsimiles (followed promptly by originals) or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to Administrative Agent, each Lender, Parent, and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as Required Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) no action, suit, investigation or proceeding is pending or, the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect;
(viii) except as a duly completed Compliance Certificate certifying compliance with all financial covenants set forth in the post-Closing LetterSection 8.15, in each case prepared as of June 30, 2019, on a pro forma basis, and signed by a Responsible Officer of Borrower and Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) such other assurances, certificates, documents, consents or opinions as Administrative Agent, L/C Issuer, Swing Line Lender or Required Lenders may reasonably require.
(i) Upon the Security Documents set forth on Schedule 4.01(a)(xreasonable request of any Lender made at least seven (7) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on days prior to the Closing Date (Date, Borrower shall have provided to the extent required by the Pledge Agreement)such Lender, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which and such Lender shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentsatisfied with, the Loan Parties documentation and their management reasonably other information so requested by any Agentin connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case with results reasonably satisfactory to the Agents;
at least three (xiv3) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or Business Days prior to the Closing Date pursuant and (ii) at least three (3) Business Days prior to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date any Loan Party that qualifies as required 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 Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000Party.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jd) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) pdf copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Notes executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of the Trust is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s business in its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit H and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter for which financial statements have been publicly filed prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2018, signed by a Responsible Officer of the Borrower; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Parent.
(d) The Co-Collateral Agents shall be Required Lenders reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be may reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtainedrequire.
(i) All Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower 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 PATRIOT Act, in each case at least five (5) days prior to the Closing Date and (ii) at least five (5) days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees required to be paid by to the Borrowers to Administrative Agent or any of the Agents Lender in connection with this Agreement or the Arrangers Fee Letter on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jd) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the date that is three Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit and Term Loan Agreement (Black Creek Diversified Property Fund Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender Lender, including without limitation, the UK Lender, to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreementthe Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a NoteNote and a Note executed by Cross UK in favor of the UK Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate each of its Subsidiaries is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and Dodge, LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent addressing such matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Required Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since June 30, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing Letterlast day of the fiscal quarter of the Borrower ended on September 30, 2005, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents UK Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Cross a T Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) pdf copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of the Trust is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s business in its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit H and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2012, signed by a Responsible Officer of the Borrower; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the ParentRequired Lenders reasonably may reasonably require.
(db) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by to the Borrowers to Administrative Agent or any of the Agents Lender in connection with this Agreement or the Arrangers Fee Letter on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the date that is three Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Dividend Capital Diversified Property Fund Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s and the Term Loan Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mailemail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Agent and the Term Loan Agent:
(i) executed counterparts of this AgreementAgreement sufficient in number for distribution to the Agent, the Term Loan Agent, each Lender and the Lead Borrower;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) 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 a party or is to become a party;
(iv) copies of each Loan Party’s certificate Organization Documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business 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 opinion opinions of (x) Skadden, Arps, Slate, ▇L▇▇▇▇▇▇ & G▇▇▇▇ LLP, special LLP and local real estate counsel, counsel to the Domestic Loan Parties, addressed to the Administrative Agent and the Term Loan Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Term Loan Parties and the Loan DocumentsAgent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, (B) that there has been no event or circumstance since February 2, 2014, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such any Loan Party of the Loan Documents to which it is a partyDocuments, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or and the Canadian Agent, as applicable, Term Loan Agent required under the Loan Documents have been obtained and are in effect;
(ixviii) a payoff letter certificate from the agent for chief financial officer of the lenders under the Existing Credit Agreement reasonably Lead Borrower, satisfactory in form and substance to the Agents evidencing that Agent and the Existing Credit Agreement has been or concurrently with Term Loan Agent, attesting to the Solvency of the Loan Parties as of the Closing Date is being terminated, all obligations thereunder are being paid in full (except after giving effect to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedtransactions contemplated hereby;
(xix) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are evidencing any stock being delivered pledged thereunder, together with delivery to the US Term Loan Agent subject to the Intercreditor Agreement);
of (xi1) all other Loan Documents set forth on Schedule 4.01(a)(xi“certificated securities” being pledged under the Security Documents, and (2) heretoundated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xiix) the Intercreditor Agreementall other Loan Documents, each duly executed by applicable Loan Parties;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivxi) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent and the Term Loan Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent and the Term Loan Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Agent and the Term Loan Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent and the Term Loan Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xv) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or Agent and the Canadian Agent, as applicable, Term Loan Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent and the Term Loan Agent, (B) the DDA Notifications, Credit Card Notifications Notifications, and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent and the Term Loan Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Term Loan Agent shall have received a Borrowing Base Certificate dated the Closing Date, setting forth the Revolving Borrowing Base, the Real Estate Borrowing Base and the Term Loan Borrowing Base, in each case, relating to the month ended on June 30May 4, 20092014, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(dc) The Co-Collateral Agents Agent and the Term Loan Agent shall be reasonably satisfied with that any financial statements delivered to it fairly present the results business and financial condition of Loan Parties and that there has been no Material Adverse Effect since the date of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative most recent financial information delivered to the Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Agent.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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
Sources: Credit Agreement (Alco Stores Inc)
Conditions of Initial Credit Extension. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction or waiver of each of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the date hereof or (if as applicable):) the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date), and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty Agreement, the Pledge Agreement, the Security Agreement and the Intellectual Property Security Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Principal Companies;
(ii) a Term Note and a Revolving Credit Note executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes;
(iii) with respect to each of the Deposit Accounts identified in Section 4.1(a)(ii) of the Disclosure Schedule as an operating account of the Borrower or the Parent Company with Citizens Bank of Massachusetts, an account control agreement with respect to each such operating account in form and substance reasonably satisfactory to the Administrative Agent, all as provided by Section 6.14;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(ivv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties Properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable legal opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, one or more special counsel to each of the Domestic Loan PartiesPrincipal Companies, addressed to the Administrative Agent and each Domestic Lenderof the Lenders, as to customary the matters set forth in Exhibit M concerning the Domestic Loan Parties and the Loan Documents; Documents and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP in form and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of each of the Principal Companies certifying that there has been no event or circumstance since the date of the Historical Financial Statements that has had or could be reasonably expected to have, either individually or in the post-aggregate, a Material Adverse Effect; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All Fees required to be paid on or before the Closing Letter, Date in accordance with the terms of the Agent Fee Letter shall have been paid to the Administrative Agent in full.
(c) The Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixd) a payoff letter Each of the following conditions precedent shall be satisfied with respect to the WL Acquisition, the WL Equity Investments, and the WL Employment Agreements:
(i) there shall have been delivered to the Administrative Agent true, correct and complete copies of each of the WL Transaction Documents; all of the material terms and conditions of the WL Transaction Documents shall in all material respects be the same as and consistent with the terms and conditions contained in the draft form of such documents delivered to the Administrative Agent on or about March 7, 2006; and no material provisions of any of the WL Transaction Documents shall have been modified or waived in any respect reasonably determined by the Administrative Agent to be material, in each case, without the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed);
(ii) simultaneously with the making of the initial Credit Extensions on the Closing Date, the WL Acquisition shall be closed in all material respects in accordance with the WL Acquisition Documents and Applicable Law, and all material conditions precedent to the closing of the WL Acquisition, as set forth in the WL Acquisition Documents, shall be satisfied (and not waived in any material respect, except with the prior consent of the Administrative Agent) to the reasonable satisfaction of the Administrative Agent;
(iii) simultaneously with the making of the initial Credit Extensions on the Closing Date, the WL Equity Investments shall be made in all material respects in accordance with the WL Investment Documents and Applicable Law, and all material conditions precedent to the making of the WL Equity Investments, as set forth in the WL Investment Documents, shall be satisfied (and not waived in any material respect, except with the prior consent of the Administrative Agent) to the reasonable satisfaction of the Administrative Agent;
(iv) the Borrower shall have received from the agent for Parent Company, upon the lenders under terms contained in the WL Investment Documents, cash proceeds of the WL Equity Investment in an aggregate amount not less than $10,400,000;
(v) each of M▇▇▇▇▇ and the Principal Companies shall have executed and delivered the M▇▇▇▇▇ Employment Agreement;
(vi) each of W▇▇▇▇ and the Principal Companies shall have executed and delivered the W▇▇▇▇ Employment Agreement; and
(vii) there shall have been delivered to the Administrative Agent and each Lender true, correct and complete copies of resolutions adopted by the Board of Directors of the Parent Company effective as of, and subject to, the WL Closing (A) increasing the number of members of the Board of Directors of the Parent Company from seven (7) to nine (9), and (B) approving the appointment of each of M▇▇▇▇▇ and W▇▇▇▇ to fill the two vacancies on the Board of Directors of the Parent Company, and each of M▇▇▇▇▇ and W▇▇▇▇ shall be members of the Board of Directors of the Parent Company effective as of the WL Closing.
(e) The cash proceeds of the WL Equity Investment and the Loans made on the Closing Date shall, simultaneously with the making of the Loans on the Closing Date, be applied by the Borrower towards (i) payment of the purchase price of the WL Business and the WL Assets, (ii) payment in full of the entire outstanding amount of the Existing Credit Agreement Assumed Indebtedness, and (iii) the payment of transaction costs relating to each of the foregoing.
(f) There shall have been delivered to the Administrative Agent copies of each of the Real Property Leases assumed by the Borrower in connection with the WL Acquisition.
(g) The Administrative Agent shall have received a duly completed Closing Date Compliance Certificate, reasonably satisfactory in form and substance to the Agents evidencing that Administrative Agent, signed by a Responsible Officer of each of the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedPrincipal Companies, all obligations thereunder are being paid in full (except and showing to the extent expressly set forth therein)reasonable satisfaction of the Administrative Agent that, after giving pro forma effect to the completion of the WL Acquisition, the WL Equity Investment and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with other WL Transactions upon the Closing Date are being, released;
(x) terms contained in the Security WL Transaction Documents set forth on Schedule 4.01(a)(x) hereto and copies the making of certificates evidencing any stock being pledged under the Pledge Agreement Loans on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Date:
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under Consolidated EBITDA of the Loans WL Seller, determined on a pro forma basis for the period of twelve (if any12) on the Closing Dateconsecutive months ended January 31, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents2006, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.4,500,000;
(cii) The the ratio of the Consolidated Total Debt of the Borrower and its Subsidiaries as at the Closing Date to the Consolidated EBITDA of the WL Seller and its Subsidiaries, determined on a pro forma basis for the period of twelve (12) consecutive months ended January 31, 2006, shall not exceed 2.90:1.00;
(iii) arrangements reasonably satisfactory to the Administrative Agent and the Canadian Agent shall have received been made for the payment in full of the Existing Assumed Indebtedness and the termination of all of the Liens on WL Assets securing the Existing Assumed Indebtedness, such payment and such termination to be completed immediately after the making of Loans on the Closing Date; and
(iv) the aggregate amount of all unrestricted cash and cash equivalents owned by the Parent Company on a Borrowing Base Certificate dated stand-alone basis on the Closing Date, relating determined after giving effect to the month ended on June 30WL Transactions, 2009including the WL Equity Investment made by the Parent Company in the Borrower, shall not be less than $2,900,000. For purposes of clause (i) and executed by a Responsible Officer clause (ii) of this paragraph (g), the Consolidated EBITDA of the Lead Borrower or WL Seller for each of the Parentmonthly accounting periods from February 1, 2005 through the Closing Date shall be adjusted by also adding to Consolidated Net Income of the WL Seller for each of such monthly accounting periods, but only to the extent reflected as a charge in the statement of such Consolidated Net Income for each such period (and without duplication of any of the items of cost and expense already added to Consolidated Net Income in accordance with the definition of “Consolidated EBITDA”), certain non-going forward expense items in the maximum permissible amount identified by the Principal Companies for each of such monthly accounting periods and approved by the Administrative Agent. The maximum permissible amount of each of such non-going forward expense items identified by the Principal Companies for each of such monthly accounting periods and approved by the Administrative Agent is specified in Section 4.1 of the Disclosure Schedule (collectively, “Permitted EBITDA Addback Adjustments”).
(dh) The Co-Collateral Agents shall be reasonably satisfied with the results Total Outstandings on and as of the inventory appraisal conducted by Great American Group dated AprilClosing Date, 2009determined after giving pro forma effect to all of the Loans made or to be made hereunder on the Closing Date, shall not exceed $13,000,000.
(ei) The Administrative Agent shall have received, (i) and received forecasts prepared by the Agents shall be reasonably satisfied with a Consolidated balance sheet senior management of the Parent Principal Companies, in form and its Subsidiaries as at detail reasonably satisfactory to the Fiscal Quarter ended April 30Administrative Agent, 2009, of consolidated balance sheets and the related Consolidated statements of income or operations, Shareholders’ Equity operations and cash flows for such Fiscal Quarter and for the portion of the Parent’s Parent Company, the Borrower and the Subsidiary Guarantors for each Fiscal Year then endedfrom 2006 through and including 2011, and (ii) such forecasts to be on a detailed forecast for the period commencing with the Fiscal Quarter ending July Quarter-basis through December 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full2006.
(j) The Borrowers Principal Companies shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced in customary detail prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Principal Companies and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July May 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2006. Without limiting the generality of the provisions of Section 9.049.4, for purposes of determining compliance with the conditions specified in this Section 4.014.1, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each Instrument or document or other matter required thereunder hereunder to be Consented consented to or approved by or acceptable or satisfactory to a Lender Lender, unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its such Lender’s objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other in electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) format (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all material consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) that, as of after giving effect to this Agreement and the Closing Date other Loan Documents (including after giving effect to the transactions contemplated herebyinitial Loans under this Agreement), the Loan Parties on a consolidated basis are Borrower will be Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower ended June 30, 2013, signed by a Responsible Officer of Borrower;
(x) evidence that all commitments under that certain Credit Agreement dated as of February 10, 2011 among Borrower and Union Bank, N.A., as administrative agent and lender (as amended and restated from time to time, the agent for the lenders under the “Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has Agreement”), have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentdocuments, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches consents or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated opinions as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Agent or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by in connection with this Agreement (including but not limited to the Borrowers to any of the Agents or the Arrangers Agent Fee Letter) on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31November 27, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2013. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Resmed Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Pledge Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Company and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit J and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence that all Indebtedness of the Company, any Guarantor and their Subsidiaries existing on the Closing Date under the Existing Credit Agreement has been repaid or cancelled, all documentation representing such Indebtedness shall have been terminated and all Guarantees, Liens and security interests associated therewith have been released, or that reasonably adequate measures have been or concurrently with the Closing Date are being taken to terminate such documentation and release such Guarantees, Liens and security interests, except as set forth otherwise agreed by Administrative Agent;
(ix) a complete search of the records of each filing office where a financing statement (including under the Uniform Commercial Code), judgment Lien, tax Lien or other Lien naming a Loan Party or any other party must be filed to perfect Administrative Agent’s security interest and Lien, for the benefit of the Secured Parties, in any of the post-Closing LetterCollateral, which searches shall be satisfactory to Administrative Agent;
(x) delivery of Uniform Commercial Code financing statements suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien (subject only to Permitted Liens) in and to such other Collateral as the Administrative Agent may require including without limitation the delivery by the Loan Parties of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;; and
(xii) such other assurances, certificates, documents, consents or opinions as the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Company shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Tetra Tech Inc)
Conditions of Initial Credit Extension. The obligation obligations of the Lenders and L/C Issuer and each Lender Issuers to make its their initial Credit Extension Extensions hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranties, the Pledge Agreement, the Security Agreement, the Interco Subordination Agreement and the Intercreditor Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Document Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Document Party is a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Document Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Document Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectbusiness;
(v) a except as otherwise specified in Section 6.15, favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Document Parties, addressed to the Administrative Agent Agent, each L/C Issuer and each Domestic Lender, as to customary the matters set forth in Exhibit P and such other matters concerning the Domestic Loan Document Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Document Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Document Party and the validity against such Loan Document Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Company certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could be reasonably expected to which it is have, either individually or in the aggregate, a party, or (2) that all such consents, licenses Material Adverse Effect; and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedcurrent Debt Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date, signed by a Responsible Officer of the Company;
(ix) except as set forth otherwise specified in Section 6.15, evidence satisfactory to the Administrative Agent that the Liens granted to the Collateral Agent for the benefit of the Lenders in the postcollateral described in the Pledge Agreement and the Security Agreement are perfected security interests (except that with respect to the pledge of any Capital Stock of First Tier non-Closing LetterU.S. Subsidiaries, perfected to the extent that the Uniform Commercial Code in the relevant jurisdiction is applicable) in each case subject to nonconsensual Permitted Liens; and no Lien (other than nonconsensual Permitted Liens) exists on any such collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Lenders, pursuant to the Loan Documents;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixxi) a payoff letter from the agent for the lenders evidence that all amounts owing under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has have been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;paid; and
(xii) such other assurances, certificates, documents, consents or opinions as the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuers, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Company shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July August 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2004. 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 (other than an Agent or the Canadian Agent) and L/C Issuer that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented consented to or approved by or acceptable or satisfactory to a Lender or L/C Issuer unless the Administrative Agent shall have received notice from such Lender or L/C Issuer prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Solectron Corp)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:precedent (it being understood that the conditions in this Section 4.01 were satisfied on the Closing Date, and the only conditions to the effectiveness of (x) the 2021 Refinancing Amendment on the 2021 Refinancing Amendment Effective Date are set forth in the 2021 Refinancing Amendment and (y) Amendment No. 10 on the Amendment No. 10 Effective Date are set forth in Amendment No. 10):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty, and the Security and Pledge Agreement executed by each Person a party thereto;
(ii) a Note executed by each the applicable Borrower Borrowers in favor of each Lender requesting a NoteNote with respect to the applicable Facility;
(iii) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower and each Material Guarantor as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Borrower or Material Guarantor is a party or is to be a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Borrower and each Material Guarantor is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) that each Borrower and a certificate of each Material Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion customary opinions of (x) SkaddenG▇▇▇▇▇, Arps, Slate, D▇▇▇ & C▇▇▇▇▇▇▇ & ▇▇▇▇ LLPLLP and certain local counsel, special in each case counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, dated as to customary matters concerning of the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsClosing Date;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Company certifying that (A) that the conditions specified in Sections 4.02(aSection 4.01(c) and 4.02(b4.01(d) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with each of the execution, delivery and performance by any Loan Party Specified Representations and the validity against such Loan Party of the Loan Documents Specified Purchase Agreement Representations are true and correct in all material respect (or, with respect to which it is a partyrepresentations and warranties modified by materiality standards, or (2in all respects) that all such consents, licenses on and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect date of such Credit Extension, except to the transactions contemplated herebyextent that such representations and warranties specifically refer to an earlier date, the Loan Parties on a consolidated basis are Solvent, in which case they shall be true and (D) that this Agreement and all Obligations satisfy the requirements correct as of section 3.3 of the Senior Note Indenturesuch earlier date;
(vii) intentionally omitteda solvency certificate substantially in the form of Exhibit J signed by the chief financial officer of the Company;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement[reserved];
(A) a written report regarding the results audited consolidated balance sheets and related consolidated statements of a commercial finance examination income and cash flows of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents Company and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents its Subsidiaries for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or last three fiscal years ended at least 90 days prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (iiB) audited consolidated balance sheets and related consolidated statements of income and cash flows of the payment of all fees Target and other amounts due its Subsidiaries for the last three fiscal years ended at least 90 days prior to the Credit Parties by the Borrowers on the Closing Date as required under the Loan DocumentsDate, (iiiC) all Letters unaudited consolidated balance sheets and related consolidated statements of Credit income and cash flows of the Company and its Subsidiaries for each fiscal quarter of the Company (other than the fourth fiscal quarter) ended after September 30, 2013 and at least 45 days prior to be issued on the Closing Date, and (ivD) unaudited consolidated balance sheets and related consolidated statements of income and cash flows of the pay off Target and its Subsidiaries for each fiscal quarter of obligations under the Existing Target (other than the fourth fiscal quarter) ended after December 31, 2013 and at least 45 days prior to the Closing Date;
(x) a pro forma consolidated balance sheet as of the end of the fiscal quarter ended March 31, 2014 and as of the end of each subsequent fiscal quarter (ended at least 45 days prior to the Closing Date) or fiscal year (ended at least 90 days prior to the Closing Date) and related consolidated statements of income and cash flows of the Company and its Subsidiaries for the prior twelve month period ending on the relevant fiscal quarter or year-end, after giving effect to all elements of the Transaction to be effected on or before the Closing Date;
(xi) forecasts for the fiscal years ending September 30, 2014 through September 30, 2018 of the Company and its Subsidiaries of balance sheets, income statements and cash flow statements on a quarterly basis through September 30, 2015 and on an annual fiscal year basis for each year thereafter during the term of this Agreement;
(xii) a Request for Credit Agreement Extension in accordance with the requirements hereof (with a copy to the applicable L/C Issuer or the Swing Line Lender, if applicable), along with a customary flow of funds statement executed by the Company with respect to all Loans to be advanced and other transactions to occur on the Closing Date; and
(xiii) to the extent applicable, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000a Funding Indemnity Letter.
(cb) The Administrative Agent Collateral and the Canadian Agent Guarantee Requirement (other than in accordance with Section 6.17 and Schedule 6.17) shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably been satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower after giving effect to any Liens to be released prior to or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously contemporaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date) the Collateral shall be subject to no Liens other than Permitted Liens; provided that if, plus such additional amounts of such fees, charges and disbursements payable notwithstanding the use by the Borrowers hereunder as shall Company of commercially reasonable efforts to provide and perfect on the Closing Date security interest in assets intended to constitute Collateral such counsels’ reasonable estimate provision and/or perfection of such feesa security interest (other than the (i) execution and delivery of the Security and Pledge Agreement by each Loan Party, charges and disbursements incurred or (ii) the delivery of UCC financing statements with respect to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any each Loan Party (or any Credit Party shall have occurred prior to an authorization permitting the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify to file UCC financing statements with respect to each Loan Party), and (iii) the Lead Borrower delivery of short-form security agreements with respect to each Loan Party for filing with the United States Patent and Trademark Office or the Lenders United States Copyright Office (or an authorization permitting the Administrative Agent to file such short-form security agreements with respect to each grantor)) is not accomplished as of the Closing Date, and such notice provision and/or perfection of a security interest in such Collateral shall not be a condition to the availability of the initial Credit Extension on the Closing Date (but shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented to, approved or accepted or required to be satisfied with, each document after the Closing Date within the period specified therefor in Schedule 6.17 or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless such later date as the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretomay reasonably agree).
Appears in 1 contract
Sources: Credit Agreement (Aecom)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party or is to be a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s business in its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ Sidley Austin LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit F and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower as of the Closing Date after giving effect certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied or waived (which such waiver must be in writing), (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be expected to have, either individually or in the transactions contemplated herebyaggregate, a Material Adverse Effect, (C) that neither the Loan Parties on Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a consolidated basis are SolventMaterial Adverse Effect, and (D) that this Agreement the Borrower has disclosed to the Administrative Agent and the Lenders all Obligations satisfy matters known to any Responsible Officer that, individually or in the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedaggregate, could reasonably be expected to result in a Material Adverse Effect;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing LetterDate, signed by a Responsible Officer of the Borrower, certifying as to no Default under the terms of this Agreement and evidencing compliance with Section 7.10;
(ix) a duly completed Subordination Agreement as of the Closing Date, signed by a Responsible Officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixxi) evidence that the Existing Parent Company Credit Agreement has been or concurrently with the Closing Date is being terminated and concurrent consummation of a payoff letter from the related facility among Parent Company, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for and the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing party thereto;
(xii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full ; and
(except xiii) any amendment to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or CoBank Term Loan Facility being executed concurrently with the Closing Date are being, released;
(x) and each Guarantee of the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US CoBank Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, Facility shall each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents Administrative Agent and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds each of the Term Loans in a minimum amount of $125,000,000Lenders;
(xiv) 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.
(gb) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers Borrower pursuant to any of the Agents or the Arrangers Fee Letters on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented invoiced fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such invoiced fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any the Administrative Agent or Arrangerin accordance with the terms of this Agreement).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31June 29, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2018. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other in electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) format (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all material consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) that, as of after giving effect to this Agreement and the Closing Date other Loan Documents (including after giving effect to the transactions contemplated herebyinitial Loans under this Agreement), the Loan Parties on a consolidated basis are Borrower will be Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from duly completed Compliance Certificate as of the agent for last day of the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedfiscal quarter of Borrower ended December 31, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)2015, and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedsigned by a Responsible Officer of Borrower;
(x) a payoff letter, in form and substance satisfactory to Agent, from ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent (in such capacity, “▇▇▇▇▇ Fargo”) under that certain Credit Agreement dated September 21, 2012, by and among Brightree, as borrower, the Security Documents set forth on Schedule 4.01(a)(x) hereto lenders party thereto from time to time and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date ▇▇▇▇▇ Fargo (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time prior to the extent required by date hereof, the Pledge “▇▇▇▇▇ Fargo Credit Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement”);
(xi) evidence that (A) the Indebtedness owing under the ▇▇▇▇▇ Fargo Credit Agreement has been or will, on the Closing Date, be repaid in full and all other Loan Documents set forth commitments of the lenders thereunder to lend have been terminated and (B) all liens filed by ▇▇▇▇▇ Fargo against Brightree and any of its Subsidiaries in connection with the ▇▇▇▇▇ Fargo Credit Agreement have been or will be terminated on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan PartiesClosing Date;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to Agent and the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to Lenders that the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have Brightree Acquisition has been made; andconsummated;
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by the Agents opinions as Agent or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by in connection with this Agreement (including but not limited to the Borrowers to any of the Agents or the Arrangers Agent Fee Letter) on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or ArrangerAgent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31April 30, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2016. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Resmed Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):Party, each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this AgreementAgreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) 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 a party or is to be a party;
(iv) copies of each Loan Party’s certificate Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the AgentsAdministrative Agent, certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had, or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any such Loan Party Party, and the validity against such Loan Party Party, of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, effect and (CD) that, to the Solvency of the Loan Parties as of the Closing Effective Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitteda 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 Effective Date, signed by a Responsible Officer of the Lead Borrower;
(viii) except as set forth in a Borrowing Base Certificate dated the post-Closing LetterEffective Date, relating to the month ended on February 28, 2013, and executed by a Responsible Officer of the Lead Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, Agents required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Parties;
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xv) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, Collateral Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Collateral Agent and (B) the Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) After giving effect The Administrative Agent shall be reasonably satisfied that any financial statements delivered to (i) it fairly present the first funding under business and financial condition of the Loans (if any) on Loan Parties and that there has been no Material Adverse Effect since the Closing Date, (ii) date of the payment of all fees and other amounts due most recent financial information delivered to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000Administrative Agent.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
such other information (efinancial or otherwise) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid requested by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullAdministrative Agent.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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
Sources: Credit Agreement (Rue21, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other in electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) format (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates or extracts of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require (and in the case of the Borrower, in a customary form) evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectEffect (if applicable);
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesParties (or in the case of the legal opinion to be delivered in respect of Australian law matters, the Agent’s Australian counsel) reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan Documents; Documents in form and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAgent;
(vi) a certificate signed by of a Responsible Officer of each Loan Party (and in the Lead case of the Borrower, satisfactory in form and substance to the Agents, certifying a customary form) either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all material consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) that, as of after giving effect to this Agreement and the Closing Date other Loan Documents (including after giving effect to the transactions contemplated herebyinitial Loans under this Agreement), the Loan Parties on a consolidated basis are Borrower will be Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(viiA) intentionally omitted;
upon the reasonable request of any Lender made at least ten (viii10) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant days prior to the Loan Documents Closing Date, the documentation and all endorsements other information so requested in favor of connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Administrative Agent or PATRIOT Act, in each case at least five (5) days prior to the Canadian AgentClosing Date and (B) at least five (5) days prior to the Closing Date, as applicable, required under the Loan Documents have been obtained and are in effecta Beneficial Ownership Certification;
(ix) a payoff letter from duly completed Compliance Certificate as of the agent for last day of the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedfiscal quarter of Parent ended March 31, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)2022, and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;signed by a Responsible Officer of Parent; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan documents, consents or opinions as Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by in connection with this Agreement (including but not limited to the Borrowers to any of the Agents or the Arrangers Agent Fee Letter) on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent (directly to such counsel if requested by Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAgent). Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Syndicated Facility Agreement and Unconditional Guaranty (Resmed Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of SECOND AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) Page 70 certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty and the Contribution Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of each Consolidated Subsidiary is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) SkaddenDentons US LLP or other attorney reasonably acceptable to Administrative Agent, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special as counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit I and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing Letterlast day of the fiscal quarter of the Borrower ended on June 30, 2015, signed by a Responsible Officer of the Borrower; (ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, Lead Arranger, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualificationqualification which are listed on Schedule 4.01, except to the extent that failure to do so qualify in such jurisdiction could would not reasonably likely be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, SlateWinstead Sechrest & Minick P.C., ▇▇▇▇▇▇▇ & ▇▇ the ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since September 29, 2002 that has had or would likely be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio, the Consolidated Fixed Charge Coverage Ratio and Consolidated Net Worth as of the last day of the fiscal quarter of CEC Entertainment most recently ended prior to the Closing Date;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from true, correct and complete copies of the agent Audited Financial Statements and the unaudited interim financial statements for CEC Entertainment for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing nine months ended September 29, 2002;
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminatedterminated and, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)if applicable, and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents L/C Issuer or the Canadian AgentRequired Lenders reasonably may require, as applicableincluding information regarding litigation, to be filedtax, registered labor, pension liabilities (actual or recorded to createcontingent), perfect or protect the Liens intended to be created under the Loan Documentsdebt agreements, insurance, environmental matters, contingent liabilities and (B) Credit Card Notifications management of CEC Entertainment and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofits Subsidiaries.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July 31December 3, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 thereto2002.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date on or before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement and each other Collateral Document;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Party, is a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is (A) duly organized or articles of incorporation formed and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionB) and a certificate of validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning Lender (which opinion shall expressly permit reliance by successors and permitted assigns of the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsaddressees thereof);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each of Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of C▇▇▇▇▇▇▇▇ certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since June 30, 2022 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the Consolidated Total Leverage Ratio as of December 31, 2022;
(viii) except as set forth searches of UCC filings in the post-Closing Letterjurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;
(ix) completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full(including, and without limitation, all fees required to be paid by the Borrowers pursuant to Section 2.10(b)) to the Administrative Agent, the Arrangers and the Lenders on and any other accrued and unpaid fees or before the Closing Date shall have been paid in fullcommissions due hereunder.
(jc) The Borrowers Unless waived by the Administrative Agent, C▇▇▇▇▇▇▇▇ shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder actually incurred and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between C▇▇▇▇▇▇▇▇ and the Borrowers and any Agent or ArrangerAdministrative Agent).
(kd) The Agents (i) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, the Borrowers shall have received all provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot Act.
, in each case at least three (l3) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred days prior to the Closing Date and (ii) at least three (3) days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Unconditional Guaranty, sufficient in number for distribution to Administrative Agent, each Lender and Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires require such qualification, except to the extent that failure to do so qualify in such jurisdiction could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesBorrower's counsel, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings, if any, and a calculation of the Leverage Ratio as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date; and (D) to the extent Borrower's Debt Rating is not Investment Grade as of the Closing Date, a Borrowing Base Report;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)such other assurances, together with copies of undated stock powers executed in blankcertificates, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretodocuments, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any consents or opinions as Administrative Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Partiesany L/C Issuer, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.Required Lenders reasonably may require. EXHIBIT 10.1
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Senior Unsecured Revolving Credit Agreement (Wci Communities Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension Loan 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Borrower, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) fully executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) a an Amended and Restated Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Borrower is a party;
(iv) copies of each Loan Party’s certificate such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Borrower addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsset forth in Exhibit B;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, (B) all governmental, shareholder and third party consents and approvals necessary for the Borrower to enter into the Loan Documents and perform thereunder, if any, have been obtained, except where the failure to obtain would not reasonably be expected to have a Material Adverse Effect, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) to such Responsible Officer’s knowledge, no Default or Event of Default exists, (2) all representations and warranties contained herein are true and correct in all material respects, and (3) the Borrower is in pro forma compliance with each of the financial covenants set forth in Section 7.11 for the fiscal quarter ending June 30, 2014 (which calculation, including a detailed calculation of each such financial covenant, has been delivered to the Administrative Agent prior to Closing); (D) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, ; and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (CE) that, as to such Responsible Officer’s knowledge, there has been no event or circumstance since the date of the Closing Date after giving effect Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the transactions contemplated herebyaggregate, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note IndentureMaterial Adverse Effect;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and all endorsements is in favor of effect; and
(viii) such other assurances, certificates, documents or consents as the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement Required Lenders reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofmay require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateThere shall not have occurred since June 30, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents2014 any event or condition that has had or would be reasonably expected, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid either individually or in the ordinary course of business and without acceleration of salesaggregate, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000to have a Material Adverse Effect, as determined by Administrative Agent.
(c) The Administrative Agent and the Canadian Agent There shall have received a Borrowing Base Certificate dated the Closing Datenot exist any action, relating suit, investigation, or proceeding pending, or to the month ended on June 30knowledge of Borrower, 2009threatened in writing, and executed in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect, as determined by a Responsible Officer of the Lead Borrower or the ParentAdministrative Agent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required reimbursable expenses for which invoices have been presented to be paid by the Borrowers to the Lenders Borrower on or before the Closing Date shall have been paid in fullpaid.
(je) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced to Borrower prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Franklin Street Properties Corp /Ma/)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, Adobe files or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a Note Notes executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes prior to the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of the Guarantors is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction business in its state of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth in Exhibit J and such other matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) that the conditions specified in Sections 4.02(aeither (I) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (II) stating that no such consents, licenses or approvals are so required; (B) that certifies that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (C) that, as that certifies that there has been no event or circumstance since the date of the Closing Date after giving effect Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the transactions contemplated herebyaggregate, the Loan Parties on a consolidated basis are Solvent, Material Adverse Effect; and (D) that this Agreement and all Obligations satisfy certifies the requirements of section 3.3 of the Senior Note Indenturecurrent Debt Ratings;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), terminated and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xvviii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Domestic Swing Line Lender, the Foreign Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any invoiced fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its respective 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 telecopies facsimiles (followed promptly by originals) or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to Administrative Agent, each Lender, Parent, and Borrower;
(ii) a Note executed by each applicable Borrower ▇▇▇▇▇▇▇▇ in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as Required Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) no action, suit, investigation or proceeding is pending or, the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect;
(viii) except as a duly completed Compliance Certificate certifying compliance with all financial covenants set forth in Section 8.15, in each case prepared as of June 30, 2022, on a pro forma basis to reflect the post-amount of any Borrowings on the Closing LetterDate, and signed by a Responsible Officer of Borrower and Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) such other assurances, certificates, documents, consents or opinions as Administrative Agent, L/C Issuer or Required Lenders may reasonably require. including the Security Documents set forth on Schedule 4.01(a)(xBorrower’s Instruction Certificate and Borrower Remittance Instructions.
(i) hereto and copies Upon the reasonable request of certificates evidencing any stock being pledged under the Pledge Agreement on Lender made at least seven (7) days prior to the Closing Date (Date, Borrower shall have provided to the extent required by the Pledge Agreement)such Lender, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which and such Lender shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parentsatisfied with, the Loan Parties documentation and their management reasonably other information so requested by any Agentin connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case with results reasonably satisfactory to the Agents;
at least three (xiv3) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or Business Days prior to the Closing Date pursuant and (ii) at least three (3) Business Days prior to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date any Loan Party that qualifies as required 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 Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000Party.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jd) The Borrowers Unless waived by Administrative Agent, ▇▇▇▇▇▇▇▇ shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of the Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning in the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsform set forth in Exhibit G;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the ParentRequired Lenders reasonably may require. On the Closing Date, the Administrative Agent will provide the Borrower with a letter stating that each of the conditions set forth in this Section 4.01(a) has been satisfied or waived.
(db) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) a Note Notes executed by each applicable Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party as listed on Schedule 4.01(a) is duly organized or articles formed, and that each of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionthe Borrowers’ as listed on Schedule 4.01(a) and a certificate of is validly existing, in good standing (and qualified to engage in business in each of the jurisdictions’ as listed on Schedule 4.01(a) where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to Associate General Counsel of the Domestic Loan PartiesCompany, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date;
(viii) except a duly completed Compliance Certificate as set forth in of the post-last day of the fiscal quarter of the Company most recently ended prior to the Closing LetterDate, signed by a Responsible Officer of the Company;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixx) a payoff letter from the agent for the lenders all principal and interest owing under the Existing Credit Prior Agreement reasonably satisfactory in form and substance shall have been refinanced pursuant to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)this Agreement, and all Liens securing obligations under the Existing Credit Agreement fees and other amounts outstanding thereunder shall have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed been paid in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);full; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect The Company shall have paid to (i) the first funding under Lenders, the Loans (if any) Administrative Agent, the Joint Lead Arrangers and the Joint Bookrunner all fees required to be paid and all reasonable expenses for which invoices have been presented, on or before the Closing Date.
(c) Unless waived by the Administrative Agent, (ii) the payment Company shall have paid all fees, charges and disbursements of all fees and other amounts due counsel to the Credit Parties by the Borrowers on the Closing Date Administrative Agent as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and any Agent or Arrangerthe Administrative Agent).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(nd) The Closing Date shall have occurred on or before July August 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties2007. 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender of the Lenders to make its their 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a an original Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of Guarantors is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect, including, certified copies of the Borrower’s organization documents, certificates of good standing and/or qualification to engage in business and tax clearance certificates;
(v) a favorable opinion written opinions addressed to the Administrative Agent and the Lenders and dated as of the Closing date of (xi) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇, Chief Corporate and Governance Counsel of the Borrower and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesBorrower, addressed substantially in the forms set forth in Exhibits B-1 and B-2, respectively, and covering such other matters relating to the Administrative Agent and each Domestic LenderBorrower, this Agreement or the transactions contemplated hereby as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsRequired Lenders shall reasonable request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are of Governmental Authorities and other Persons required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and, required in connection with the Loan Documents and the transactions contemplated thereby, and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor copies of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained financial statements referred to in Sections 5.01(a) and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth thereinb), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that there has been no event or circumstance since the date of the Audited Financial Statements for the fiscal year ending December 31, 2011, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (B) compliance with Section 6.11 and 6.12 as of the most recent fiscal quarter end; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lender or the ParentRequired Lenders reasonably may require.
(db) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) Any fees and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder of counsel as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.049.02, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement executed by Borrower and Holdings, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note the Guaranties executed by each applicable Borrower in favor of each Lender requesting a Notethe Guarantors;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of formed, validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business 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 opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the ParentRequired Lenders reasonably may require.
(db) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid Unless waived by the Borrowers to any of Administrative Agent, the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender Lender, including without limitation, the UK Lender, to make its initial Credit Extension hereunder 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreementthe Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles formed, and that each of incorporation the Borrower and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate each of its Subsidiaries is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and Dodge, LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as in form and substance satisfactory to customary the Administrative Agent addressing such matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Required Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;so required; 4019304v5
(vii) intentionally omitteda certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and Q) have been satisfied, and (B) that there has been no event or circumstance since June 30, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) except a duly completed Compliance Certificate as set forth in of the post-Closing Letterlast day of the fiscal quarter of the Borrower ended on September 30, 2005, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;; and
(x) such other assurances, certificates, documents, consents or opinions as the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuer, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents UK Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit Agreement (Cross a T Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Co-Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (Party, if applicable):, each dated such date (or, in the case of certificates of governmental officials, a recent date before such date) and each in form and substance satisfactory to the Co-Administrative Agents and the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to each Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) as the authority of each Loan Party to enter into this Agreement Co-Administrative Agents and the other Loan Documents to which such Loan Party is a party and (B) Lenders 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 a party or is to be a party;
(iv) copies of such documents and certifications as the Co-Administrative Agents and the Lenders may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇J▇▇▇▇ & ▇▇▇▇ LLPDay, special counsel to the Domestic Loan Parties, addressed to the Co-Administrative Agent Agents and each Domestic Lender, as in form and substance reasonably satisfactory to customary matters concerning the Domestic Loan Parties and the Loan Documents; and Co-Administrative Agents;
(yvi) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇a favorable opinion of W▇▇▇▇▇▇ ▇. ▇▇▇▇▇ LLP▇▇▇▇, counsels internal counsel to the Canadian Loan PartiesParties in Pennsylvania, addressed to the Canadian Agent Co-Administrative Agents and each Canadian Lender, as in form and substance reasonably satisfactory to customary matters concerning the Canadian Loan Parties and the Loan DocumentsCo-Administrative Agents;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedso required;
(viii) except as set forth a certificate signed by a Responsible Officer of the Borrower certifying that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the post-Closing Letteraggregate, a Material Adverse Effect;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ixx) a payoff letter certificate attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis, after giving effect to the consummation of the transaction contemplated hereby, from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form Borrower’s Chief Financial Officer or Executive Vice President-Finance and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Administration; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Partiescertificates, which shall be reasonably satisfactory to documents, consents or opinions as the Co-Collateral Administrative Agents and (B) background checks on the Parent, the Loan Parties and their management may reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereofrequire.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders Borrower on or before the Closing Date shall have been paid in full.
(jc) The Borrowers shall have paid all All accrued reasonable and documented fees, charges and disbursements expenses of counsels to the Co-Administrative Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing DateLenders, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, Attorney Costs for which the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred Borrower has received a reasonably detailed invoice at least 5 days prior to the Closing Date, shall have been paid in full.
(md) intentionally omittedThe absence of any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that (i) could reasonably be expected to materially and adversely affect the Borrower and its Subsidiaries, (ii) purports to adversely affect the ability of the Borrower or any other Loan Party to perform their respective obligations under the Loan Documents, or (iii) purports to affect the legality, validity or enforceability of any Loan Document.
(ne) The Closing Date There shall not have occurred on a material adverse change in the business, assets, liabilities (actual or before July contingent), operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole since December 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 thereto2004.
Appears in 1 contract
Sources: Credit Agreement (Timken Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its 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 telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Loan Party and the Parent;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) Parent 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 or the Parent is a party;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party and the Parent is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available good standing is applicable) and qualified to engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (xi) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ Dentons US LLP, special counsel to the Domestic Loan PartiesParties and the Parent and (ii) local counsel to the Loan Parties and the Parent located in Bermuda, Ireland and Nevada, each addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties in form and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(vi) a certificate of a Responsible Officer of each Loan Party and the Parent either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the Parent and the validity against such Loan Party and the Parent of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(b(b) have been satisfied, satisfied and (B) either that (1) there has been no consents, licenses event or approvals are required in connection with circumstance since the execution, delivery and performance by any Loan Party and the validity against such Loan Party date of the Loan Documents Audited Financial Statements that has had or could be reasonably expected to which it is have, either individually or in the aggregate, a party, or (2) that all such consents, licenses Material Adverse Effect; and approvals have been obtained and are in full force and effect, (C) that, a calculation of the Consolidated Net Leverage Ratio as of the Closing Date after giving effect last day of the fiscal quarter of the Parent most recently ended prior to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedClosing Date;
(viii) except a duly completed Compliance Certificate as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination last day of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets fiscal quarter of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month Parent ended on June September 30, 20092015, and executed signed by a Responsible Officer of the Lead Borrower Agent; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the ParentRequired Lenders reasonably may require.
(db) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between each Borrower and the Borrowers and any Agent or ArrangerAdministrative Agent).
(kd) The Agents Borrowers shall have received terminated all documentation commitments and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to repaid all amounts accrued under the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesBilateral Credit Facilities. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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
Sources: Credit and Guaranty Agreement (James Hardie Industries PLC)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Co-Administrative Agent’s Agents’ receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (Party, if applicable):, each dated such date (or, in the case of certificates of governmental officials, a recent date before such date) and each in form and substance satisfactory to the Co-Administrative Agents and the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to each Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) as the authority of each Loan Party to enter into this Agreement Co-Administrative Agents and the other Loan Documents to which such Loan Party is a party and (B) Lenders may reasonably 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 a party or is to be a party;
(iv) copies of such documents and certifications as the Co-Administrative Agents and the Lenders may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) that each Loan Party is validly existing and a certificate of in good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business 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 Effectorganization;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPDay, special counsel to the Domestic Loan Parties, addressed to the Co-Administrative Agent Agents and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties in form and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsCo-Administrative Agents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (A) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indentureso required;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed certificate signed by a Responsible Officer of the Lead Borrower certifying that there has been no event or circumstance since the Parentdate of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a certificate attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis, after giving effect to the consummation of the transaction contemplated hereby, from the Borrower’s Chief Financial Officer or Executive Vice President-Finance and Administration; and
(ix) such other assurances, certificates, documents, consents or opinions as the Co-Administrative Agents may reasonably require.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(ib) All fees required to be paid by the Borrowers to any of Borrower in connection with the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders Loan Documents on or before the Closing Date shall have been paid in full.
(jc) The Borrowers shall have paid all All accrued reasonable and documented fees, charges and disbursements expenses of counsels to the Co-Administrative Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing DateLenders, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, Attorney Costs for which the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred Borrower has received a reasonably detailed invoice at least 5 days prior to the Closing Date, shall have been paid in full.
(md) intentionally omittedThe absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that (i) could reasonably be expected to materially and adversely affect the Borrower and its Subsidiaries, (ii) purports to adversely affect the ability of the Borrower or any other Loan Party to perform their respective obligations under the Loan Documents, or (iii) purports to affect the legality, validity or enforceability of any Loan Document.
(ne) The Closing Date There shall not have occurred on a material adverse change in the business, assets, liabilities (actual or before July contingent), operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole since December 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding 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 (other than an Agent or the Canadian Agent) 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 thereto2010.
Appears in 1 contract
Sources: Credit Agreement (Timken Co)