Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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: (i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower; (ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect; (v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent); (vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date; (vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect; (viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby; (ix) the Security Documents, each duly executed by the applicable Loan Parties; (x) all other Loan Documents, each duly executed by the applicable Loan Parties; and (xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers. (b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 5 contracts
Sources: Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (where 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Pledge Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerSubsidiary Guaranty;
(ii) a Note Notes executed by the Borrowers 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 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 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 formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage standing, as applicable in business in each jurisdiction where its ownership, lease or operation their respective jurisdictions of properties or the conduct of its business requires such qualification, except to the extent that failure to do so 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 each of ▇▇▇▇ ▇▇▇▇▇▇▇▇ & LLP and ▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and as to such matters concerning approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection Parties of the Liens Loan Documents, and such consents, licenses and approvals shall be in favor of the Collateral Agent)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 certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;; and
(viiix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification in Aggregate Commitments relation to the Borrower.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 4 contracts
Sources: Fifth Amendment to Fourth Amended and Restated Credit Agreement (Greenbrier Companies Inc), Credit Agreement (Greenbrier Companies Inc), Credit Agreement (Greenbrier Companies Inc)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the LC 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 e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note, a Term A-1 Note executed by the Borrower in favor of each Term A-1 Lender requesting a Term A-1 Note and a Term A-2 Note executed by the Borrower in favor of each Term A-2 Lender requesting a Term A-2 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of organization and (B) each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ McGuireWoods LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan 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 certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2December 31, 2015, 2017 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, Effect and (C) either that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) no consentsrelates to this Agreement or any other Loan Document, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party any of the Loan Documents to which it is a partytransactions contemplated hereby or thereby, or (2) that all such consents, licenses and approvals could reasonably be expected to have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effecta Material Adverse Effect;
(viii) a certificate Solvency Certificate from the chief financial officer of the Lead BorrowerBorrower certifying that, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyto occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), each Loan Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent;
(ix) a duly completed Compliance Certificate, giving pro forma effect to the Security Documentstransactions to occur on the Closing Date (including, each duly executed by without limitation, all Credit Extensions to occur on the applicable Loan PartiesClosing Date) (such Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(x) all other Loan Documents, each duly executed by the applicable Loan Partiesfinancial statements referenced in Section 5.05(a) and (b); and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required hereunder or under the Fee Letter to be paid on or before the Closing Date shall have been paid.
(c) Upon the reasonable request of any Lender made at least ten 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 U.S. Patriot Act, in each case at least five days prior to the Closing Date.
(d) At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall deliver to each Lender that so requests, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to the Borrower.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 written notice from Lenders other than such Lender prior to the Lead Lenders executing proposed Closing Date specifying its objection thereto. Notwithstanding anything contained elsewhere in this Agreement, each Lender that is a “Lender” (as defined in the Existing Credit Agreement) hereby waives any right to indemnification for any funding loss or expense that such Lender may sustain or incur as a result of a prepayment by the Borrower of any Loans outstanding under the Existing Credit Agreement on the Closing Date prior to the last day of the “Interest Period” (as defined in the Existing Credit Agreement) applicable thereto that is required to effect the refinancing of loans under the Existing Credit Agreement with Loans made under this Agreement or as a result of the allocation of any Loans to Lenders that were not “Lenders” under the Existing Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Apple Hospitality REIT, Inc.), Credit Agreement (Apple Hospitality REIT, Inc.), Credit Agreement (Apple Hospitality REIT, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a such 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel Parties acceptable to the Loan Parties, in each case, Agent addressed to the Administrative Agent and each Lender and Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents in the form attached hereto as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Exhibit F;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect last day of the fiscal quarter of Borrower most recently ended prior to the transactions contemplated herebyClosing Date, signed by a Responsible Officer of Borrower;
(ix) evidence that all commitments under the Amended and Restated Revolving Credit, Term Loan and Security DocumentsAgreement dated August 8, each duly executed by 2003, as amended, among Borrower and certain of its Subsidiaries and PNC Bank National Association, as lender and as agent (the applicable Loan Parties“Existing Credit Agreement”) have been or concurrently with the Closing Date are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) a forecast for the Borrower’s fiscal year ending May 31, 2007, in the same format as required for the 2008 fiscal year forecast, all other Loan Documents, each duly executed by the applicable Loan Partiesas described in Section 6.01(e); and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as Agent, the L/C Issuer or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid the reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that the aggregate amount of such fees, exclusive of disbursements, shall not exceed $65,000 for work performed prior to the Closing Date and that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
(d) The Closing Date shall have occurred on or before November 30, 2006. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 3 contracts
Sources: Credit Agreement (Mistras Group, Inc.), Credit Agreement (Mistras Group, Inc.), Credit Agreement (Mistras Group, Inc.)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer amendment and each Lender restatement of the Existing Credit Agreement as set forth herein and the obligations of the Lenders to make its initial Credit Extension hereunder is Loans on the Restatement Date are each 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to from the Borrower, the Administrative Agent, Agent and each Lender and the Lead BorrowerLender;
(ii) executed counterparts of the Reaffirmation Agreement from each Guarantor;
(iii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iiiiv) such customary 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;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require and as are customary for transactions of this type to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, and in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ (A) Winston & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath(B) ▇▇▇▇▇ & Lardner LLP, Swaine Wisconsin counsel to the Loan Parties, (C) ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., Minnesota counsel to the Loan Parties, (D) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Georgia counsel to the Loan Parties, and (E) ▇▇▇▇▇ ▇▇▇▇ LLP, Missouri counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection are customary for financings of the Liens in favor of the Collateral Agent)this type;
(vivii) an officer’s certificate prepared by the chief financial officer of the Borrower in the form of Exhibit H hereto certifying that the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the Transactions, are Solvent;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) have been satisfied; and
(ix) an initial Request for Credit Extension with respect to the Credit Extensions to be made on the Restatement Date in accordance with the requirements hereof.
(b) All accrued costs, fees and expenses (including reasonable and documented legal fees and expenses and the fees and expenses of any other advisors) and other compensation payable to the Administrative Agent, the Arrangers or any Lender required to be paid on the Restatement Date pursuant to the BofA Fee Letter and/or the CoBank Fee Letter, in each case, to the extent invoiced at least two (2) Business Days prior to the Restatement Date (or such later date as the Borrower may reasonably agree), shall have been paid.
(c) The Administrative Agent and the Lenders shall have received copies of the financial statements referred to in Section 4.02 have been satisfied 5.05(a) and (after giving effect b), each in form and substance reasonably satisfactory to each of them.
(d) There shall not exist any action, suit, investigation or proceeding pending or, to the consummation knowledge of the transactions contemplated Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(e) The Administrative Agent shall have received, at least three (3) Business Days prior to the Restatement Date, all documentation and other information required by regulatory authorities under this Agreement applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, to the extent any such information or documentation was requested by the Lenders at least ten (10) days prior to the Restatement Date.
(f) The Administrative Agent shall have received results of recent customary UCC lien searches with respect to the Borrower and the other Loan Documents Parties in their applicable jurisdictions of organization, and such searches shall reveal no Liens on any of the Closing assets of such parties except for Liens permitted by Section 7.01 or discharged on or prior to the Restatement Date pursuant to documentation satisfactory to the Administrative Agent.
(including any Loans made or Letters of Credit issued hereunder))g) Since December 31, (B) that 2016, there has been no not occurred any event or circumstance since May 2, 2015, that has had or could be reasonably expected to haveexpected, either individually or in the aggregate, to have a Material Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (C) either that (1) no consents, licenses or approvals are required in connection for purposes of determining compliance with the executionconditions specified in this Section 4.01, delivery and performance each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by such Loan Party and or acceptable or satisfactory to a Lender unless 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off Administrative Agent shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant received notice from such Lender prior to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing proposed Restatement Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersspecifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (TreeHouse Foods, Inc.), Credit Agreement (TreeHouse Foods, Inc.), Credit Agreement (TreeHouse Foods, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of (A) this Agreement, (B) the Guarantee and Collateral Agreement, (C) each Intellectual Property Security Agreement and (D) each other Collateral Document (other than any Mortgage), in each case sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note, and (B) a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) such customary 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 certified Organization Documents with respect to each Loan Party’s Organization Documents Party and such other documents 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 Party Parties is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof formation or organization, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectas applicable;
(v) a favorable opinion of each customary opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPDay, as counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transactions to be consummated on the Closing Date and the execution, delivery and performance by such Loan Party, and the validity against such Loan 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 certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) the Audited Financial Statements, which shall be reasonably satisfactory to the Administrative Agent and the Lenders;
(ix) a solvency certificate from signed by the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting Borrower as to the Solvency of the Loan Parties Borrower and its Subsidiaries, on a consolidated basis as of the Closing Date basis, after giving effect to the transactions contemplated hereby;
(ixA) the Security entering into and making of the initial Credit Extensions under the Loan Documents to occur on the Closing Date, (B) the repayment and/or refinancing of the Existing Credit Agreement to occur on or prior to the Closing Date, (C) the payment of fees and expenses in connection with the Facilities and the Loan Documents, each duly executed by ; and (D) all other transactions related to the applicable Loan Parties;Facilities to occur on the Closing Date; and
(x) evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created securing obligations under the Loan Documents and all such documents and instruments shall Existing Credit Agreement have been so filedbeen, registered or recordedconcurrently with the Closing Date are being, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.released;
Appears in 2 contracts
Sources: Credit Agreement (Polypore International, Inc.), Credit Agreement (Polypore International, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead Borrower;
(ii) a Note executed by the Borrowers 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of (x) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request, and (y) Nossaman LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (the “Initial Opinion”), as to the matters set forth in Exhibit G-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or (B) certifying that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Existing Loan Parties on a consolidated basis as of Agreement has been or concurrently with the Closing Date after giving effect to is being terminated and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) evidence that the Security Documents, each duly executed by the applicable Loan Parties;Holdco Credit Agreement shall be effective substantially simultaneously herewith; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (California Water Service Group), Credit Agreement (California Water Service Group)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder enter into this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and by each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerLender;
(ii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrowers in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Notesecretary or assistant secretary of such Loan Party to be true and correct as of 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, in-house counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying (A) that the conditions specified that, except as described in clauses (a)any subsequent Form 10-Q or Form 8-K filing, (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto ; and (FB) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;current Debt Ratings; and
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have Existing Credit Agreement has been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of or concurrently with the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersis being terminated.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Cabot Corp), Credit Agreement (Cabot Corp)
Conditions of Initial Credit Extension. The obligation of the LC 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 originals, email (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Revolving A Note and/or Revolving B Note executed by the Borrowers Borrower in favor of each Lender requesting a such 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of organization and (B) each jurisdiction where 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 could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (ii) ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate signed by a Responsible Officer of the Borrower certifying (A) that all insurance required to be maintained pursuant the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) only in the event that the Closing Date occurs prior to the Loan Documents and all endorsements in favor REIT IPO, (x) that there has been no event or circumstance since the date of the Collateral Agent required under Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (y) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Documents Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) challenges the validity or enforceability of this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) would reasonably be expected to have been obtained and are in effecta Material Adverse Effect;
(viii) a certificate Solvency Certificate from the chief financial officer of the Lead BorrowerBorrower certifying that, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyto occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) a duly completed Compliance Certificate, giving pro forma effect to the Security Documentstransactions to occur on the Closing Date (including, each duly executed by without limitation, all Credit Extensions to occur on the applicable Loan PartiesClosing Date);
(x) evidence that at least $1.6 billion of Secured Indebtedness of the Consolidated Group, including all Indebtedness of any Unencumbered Property Subsidiary and all Indebtedness secured by or relating to any Unencumbered Eligible Property (including all unpaid principal, interest, fees, expenses and other Loan Documentsamounts owing thereunder or in connection therewith) shall have been repaid in full and all commitments therefor shall have been, each duly executed or concurrently with the Closing Date are being, terminated;
(xi) evidence of a successful initial public offering by the applicable Loan PartiesREIT (“REIT IPO”), with minimum net proceeds of $2.0 billion therefrom after giving effect to concurrent payment of transaction expenses incurred in connection with the REIT IPO and the Revolving Credit Facility;
(xii) the financial statements referenced in Section 5.05(a) and (b); and
(xixiii) all documents and instruments, including Uniform Commercial Code financing statements, required by law such additional assurances or reasonably requested by the Collateral Agent and the Arrangers certifications with respect to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and conditions precedent in Article IV as the ArrangersAdministrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments The Administrative Agent and each Lender shall have been received from Lenders all documentation and other than information that the Lead Lenders executing this AgreementAdministrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 2 contracts
Sources: Credit Agreement (Paramount Group, Inc.), Credit Agreement (Paramount Group, Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer, the LC Issuer Swing Line Lender, 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the Lead BorrowerBorrower for each Initial Unencumbered Property;
(ii) a Note executed by the Borrowers 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 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPDLA Piper LLP (US), counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 5.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) a duly completed Compliance Certificate as of the Closing Date, signed by a Responsible Officer of the Borrower;
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing DateDate is being terminated and any Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(viixi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixii) a certificate from the chief financial officer Disbursement Instruction Agreement effective as of the Lead BorrowerAgreement Date;
(xiii) the Borrower shall have provided to the Administrative Agent and each Lender the documentation and other information requested by the Administrative Agent or such Lender in connection with applicable “know your customer” and anti-money-laundering rules and regulations, satisfactory including the PATRIOT Act, in form and substance each case at least five (5) Business Days prior to the Closing Date;
(xiv) at least five days prior to the Closing Date, each Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, attesting and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesDate; and
(xixv) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the Swing Line Lender, the L/C Issuers or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (STAG Industrial, Inc.), Credit Agreement (STAG Industrial, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Guaranty, the Security Agreement, the Pledge Agreement, each Mortgage Property Support Document and each other Collateral Document, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers each 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ Block & ▇▇▇▇▇▇ Garden, LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning Lender, substantially in the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens form set forth in favor of the Collateral Agent)Exhibit I;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate signed by a Responsible Officer of Holdings certifying (A) that all insurance required to be maintained pursuant to the Loan Documents conditions specified in Sections 4.02(a) and all endorsements in favor of the Collateral Agent required under the Loan Documents (b) have been obtained satisfied, and are (B) that there has been no event or circumstance since June 30, 2012, that has had or could be reasonably expected to have, either individually or in effectthe aggregate, a Material Adverse Effect;
(viii) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a certificate 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) stock or membership certificates, if any, evidencing the Equity Interests pledged pursuant to the Collateral Documents and undated stock or transfer powers duly executed in blank; in each case to the extent such Equity Interests are certificated;
(xi) in the case of any personal property Collateral located at premises leased by a Loan Party and set forth on Schedule 4.01(a)(xi), such estoppel letters, consents and waivers from the landlords of such real property (such letters, consents and waivers shall be in form and substance satisfactory to the Administrative Agent); provided, however, that if the Borrowers fail to obtain any landlord waiver or other consent or document requested of any third party, then the requirements of this clause (xi) shall be deemed to be satisfied if the Borrowers used commercially reasonable efforts to obtain the same but were unable to do so;
(xii) all Mortgaged Property Support Documents with respect to each Mortgaged Property, in form and substance satisfactory to the Administrative Agent and the Lenders;
(xiii) copies of insurance policies, declaration pages, certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property, terrorism and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents or as required by the Administrative Agent, including, without limitation, (i) standard flood hazard determination forms and (ii) if any property is located in a special flood hazard area (A) notices to (and confirmations of receipt by) such Loan Party as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (B) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent;
(xiv) a Solvency Certificate signed by the chief financial officer of the Lead Borrowereach of Holdings, satisfactory in form each Borrower and substance to the Administrative Agent, attesting each Guarantor as to the Solvency and related matters of each Borrower, individually, and of each Guarantor, taken together with the Loan Parties on a consolidated basis as of the Closing Date Borrowers and all Guarantors, after giving effect to the initial borrowings under the Loan Documents and the other transactions contemplated hereby;
(ixxv) evidence that the Security DocumentsSeller Notes and all other existing indebtedness for borrowed money of Holdings and its Subsidiaries (other than Indebtedness permitted under this Agreement), each duly executed by and all obligations in respect of the applicable Loan PartiesSeller Notes, have been or concurrently with the Closing Date are being terminated and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released or (B) to the extent any of the Seller Notes are not paid in full concurrently with the Closing Date, such continuing Seller Notes are on terms and conditions, and are subject to subordination provisions, satisfactory to the Administrative Agent and the Lenders;
(xxvi) all other Loan Documents, each duly executed evidence that the Indebtedness owed by the Company to W▇▇▇▇ Fargo Bank, National Association in the amount equal to approximately $1,200,000 has been or concurrently with the Closing Date is being repaid in full and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;
(xvii) the Administrative Agent and each Lender shall have received all documentation and other information requested by the Administrative Agent or such Lender, as applicable, in order to comply with its obligations under applicable Loan Parties“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)); and
(xixviii) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (including any local counsel) (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Tile Shop Holdings, Inc.), Credit Agreement (Tile Shop Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead Borrower;
(ii) a Note executed by the Borrowers 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 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 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 formed, and that each Loan Party is of the Borrower and its Subsidiaries are validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Standex International Corp/De/), Credit Agreement (Standex International Corp/De/)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 (except to the extent expressly waived or postponed pursuant to the Side Letter Agreement of even date herewith among the Company and the Administrative Agent:):
(i) executed counterparts of (A) this Agreement Agreement, (B) the Security Agreement, (C) the Pledge Agreement, (D) the Escrow and Security Agreement, (E) the Sonic Financial Pledge Agreement, (F) each Guaranty and (G) each other Security Instrument (other than Landlord Waivers, for which one (1) original counterpart shall be sufficient) required to be delivered in connection herewith, in each case, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the respective jurisdictions specified in Schedule 4.01, which includes each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit P (which shall include matters of Delaware, North Carolina, South Carolina and Federal Law) and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a favorable opinion of local counsel to the Loan Parties in Florida, Texas, California, Alabama, and Tennessee, addressed to the Administrative Agent and each Lender in form and substance satisfactory to the Administrative Agent;
(vii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, Company certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) a certificate signed by the chief executive officer, chief financial officer, treasurer or chief accounting officer (or in the case of Sonic Financial, a vice president) of each Loan Party certifying that each Loan Party is Solvent, after giving effect to this Agreement and the other Loan Documents and the Indebtedness pursuant hereto and thereto;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on September 30, 2005, signed by a Responsible Officer of the Company;
(xi) a duly completed Revolving Borrowing Base Certificate dated as of the Closing Date certifying as to the Revolving Borrowing Base as of September 30, 2005, signed by a Responsible Officer of the Company;
(xii) a duly completed Used Vehicle Borrowing Base Certificate dated as of the Closing Date certifying as to the Used Vehicle Borrowing Base as of September 30, 2005, signed by a Responsible Officer of the Company;
(xiii) a copy of (A) each standard form of Franchise Agreement for each vehicle manufacturer or distributor and (B) each executed Framework Agreement;
(xiv) duly executed consents and waivers required pursuant to any Franchise Agreement or Framework Agreement;
(xv) executed counterparts of intercreditor agreements between the Administrative Agent and the holders of Permitted Silo Indebtedness outstanding as of the Closing Date and evidence that all Liens securing obligations under the Permitted Silo Indebtedness (other than those Liens securing the property financed by such Permitted Silo Indebtedness) have closed on been or substantially simultaneously concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for release of such Liens within a reasonable period after the Closing Date);
(viixvi) executed counterparts of intercreditor agreements between the Administrative Agent and the holders of Interim Floorplan Indebtedness permitted hereunder outstanding on the Closing Date and evidence that all Liens securing obligations under the Interim Floorplan Indebtedness (other than those Liens securing the property financed by such Interim Floorplan Indebtedness) have been or concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for the termination of such facilities and release of such Liens within a reasonable period after the Closing Date);
(xvii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect, including endorsements naming the Administrative Agent (on behalf of the Secured Parties) as an additional insured and loss payee, as the case may be, on all such insurance policies maintained with respect to properties of the Company or any Loan Party constituting part of the Collateral;
(viiixviii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for release of such Liens within a reasonable period after the Closing Date);
(xix) evidence that the Existing New Vehicle Facilities have been or concurrently with the Closing Date are being terminated and all Liens securing obligations under the Existing New Vehicle Facilities have been or concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for termination of such facilities and release of such Liens within a reasonable period after the Closing Date);
(xx) consolidating balance sheets (including a separate line item for Eligible Used Vehicle Inventory) for the Company and each Subsidiary as at the end of September 30, 2005, and the related consolidating statements of income or operations, all in reasonable detail prepared by management of the Company or such Subsidiary, in each case with subtotals for (a) all New Vehicle Borrowers and the portion of the Dual Subsidiaries not represented by Specified Franchises and (b) all Silo Subsidiaries and the portion of the Dual Subsidiaries represented by Specified Franchises, and in each case prior to intercompany eliminations;
(xxi) forecasts (including assumptions) prepared by the management of the Company of consolidated balance sheets, income statements and cash flow statements in the form and substance reasonably satisfactory to the Administrative Agent for each of the first four years following the Closing Date;
(xxii) If required by the Administrative Agent in its sole discretion, satisfactory results of audits of the Collateral, provided that, whether or not any such audit is performed, the Administrative Agent and the New Vehicle Swing Line Lender shall be entitled to rely on information provided by any existing lender of the Company or its Subsidiaries as to any Vehicles and Existing New Vehicle Facilities being refinanced or paid down on the Closing Date.
(xxiii) (x) delivery by the Company and each applicable Loan Party owning any Equity Interests required to be pledged pursuant to this Agreement, the Pledge Agreement or the Sonic Financial Pledge Agreement of all stock certificates evidencing such pledged Equity Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto and (y) delivery by the Company and each other applicable Loan Party owning any Equity Interests required to be delivered in escrow pursuant to the Escrow and Security Agreement of all stock certificates evidencing such Equity Interests;
(xxiv) UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties 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 necessary under applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require;
(xxv) UCC search results with respect to the Borrowers showing only Liens acceptable to the Administrative Agent (or pursuant to which arrangements satisfactory to the Administrative Agent shall have been made to remove any unacceptable Liens promptly after the Closing Date),
(xxvi) such duly executed Landlord Waivers as may be requested by the Administrative Agent in its sole discretion;
(xxvii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerCompany certifying as to the status of the Unrestricted Subsidiaries;
(xxviii) such other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of Revolving Swing Line Lender, the Closing Date after giving effect to New Vehicle Swing Line Lender, the transactions contemplated hereby;
(ix) Used Vehicle Swing Line Lender or the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative 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 that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Conditions of Initial Credit Extension. The obligation of the LC 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed as promptly as practicable by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C., ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇, P.C., counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)satisfied), (B) that there has been no event or circumstance since May 2, 2015, 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) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of agent for the Lead Borrower, lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to the transactions contemplated herebyis being terminated, all obligations thereunder are being paid in full;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the 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 are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Agent and Access Agreements to the Arrangers.extent required hereunder;
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, (1) Exempted Debt does not exceed fifteen percent (15%) of Consolidated Net Tangible Assets, (2) Availability shall not be less than $100,000,000 in Aggregate Commitments 1,000,000,000 and (3) the Agent shall have been received from Lenders other than a certificate signed by a Responsible Officer of each of the Parent and Lead Borrower certifying to the foregoing (which certification shall include a reasonably detailed calculation evidencing satisfaction with this condition);
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended December 31, 2022, and executed by a Responsible Officer of the Lead Lenders executing this AgreementBorrower.
Appears in 2 contracts
Sources: Credit Agreement (KOHLS Corp), Credit Agreement (KOHLS Corp)
Conditions of Initial Credit Extension. The obligation of the LC each 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, telecopies or telecopies “PDFs” (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) such certificates of resolutions or other action, powers of attorney, 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 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) such documents, certifications and other evidence (including relevant copies of each Loan Party’s Organization Documents trade and such other documents and certifications registers) 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 (or the equivalent thereof with respect to Foreign Borrowers, to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownershipof formation or in the case of a Borrower incorporated in Luxembourg, lease or operation of properties or an excerpt from the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectLuxembourg Trade and Companies Register;
(v) a favorable opinion opinions of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPcounsel, counsel to the Loan Parties, including local and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Partiesspecial counsel, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and their capacity to enter into the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Urs Corp /New/), Credit Agreement (Urs Corp /New/)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Borrower, satisfactory in form and substance to the Administrative Agent, certifying (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had 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 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 (D) there have not been any material change in to the capital structure and capitalization Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Quarter of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viiviii) a Borrowing Base Certificate dated the Closing Date, relating to the month ended on March 31, 2008, 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 Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiix) a certificate payoff letter from the chief financial officer of agent for the Lead Borrower, lenders under the Existing Revolving Credit Loan Agreement satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Existing Revolving Credit Loan Parties on a consolidated basis as of Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Revolving Credit Loan Agreement have been or concurrently with the Closing Date are being released;
(ixxi) a payoff letter from the administrative agent for the lenders under the Existing Term Loan Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Term Loan Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Term Loan Agreement have been or concurrently with the Closing Date are being released;
(xii) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xxiii) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixiv) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law Law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(c) The Administrative Agent shall have received and be satisfied with such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(d) All necessary consents and approvals to the transactions contemplated hereby shall have been received from Lenders obtained and shall be reasonably satisfactory to the Administrative Agent, other than those which, individually or in the Lead aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect.
(e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(f) After giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder), no Default or Event of Default shall exist.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees required to be paid to the Agents on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders executing on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(k) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(1) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.04. for purposes of determining compliance with the conditions specified in this AgreementSection 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Rue21, Inc.), Credit Agreement (Rue21, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2April 30, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have BNED Credit Agreement has closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Revolving Commitments shall have been received from Revolving Lenders other than the Lead Lenders executing this Agreement.
(c) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letters of Credit), Availability shall be not less than $300,000,000.
(d) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date and relating to the fiscal month ended on July 4, 2015, duly executed by a Responsible Officer of the Lead Borrower.
(e) All fees required to be paid to the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(f) The Administrative Agent and each Lender 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 USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).
(g) The Lead Lenders shall be reasonably satisfied with the terms and conditions, taken as a whole, of the Spin-Off Agreements to the extent material to the interests of the Lenders.
(h) The Spin-Off shall have occurred, and the BNED Credit Agreement shall close on or substantially simultaneously with the Closing Date.
(i) The payoff of the Existing Credit Agreement (including the termination of commitments thereunder and agreements to terminate, or assign to the Collateral Agent for the benefit of the Secured Parties, all Liens arising thereunder) shall be effected on the Closing Date in accordance with the terms and conditions of the Payoff Letter (including, if applicable, the provision of cash collateral or a Letter of Credit with respect to any Letters of Credit then issued and outstanding under the Existing Credit Agreement). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Barnes & Noble Inc), Credit Agreement (Barnes & Noble Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Committed Loan Note executed by the Borrowers in favor of each Lender requesting a Committed Loan Note, and (B) a Swing Line Loan Note executed by the Borrowers in favor of ▇▇▇▇▇ Fargo Retail Finance, LLC;
(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 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 formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPLLP and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marks & ▇▇▇▇▇▇▇, Chtd., counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a payoff letter from the lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations and other indebtedness thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixxi) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank (other than the certificate and stock powers being delivered pursuant to Section 6.22), each duly executed by the applicable Loan Parties;
(xxii) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixiii) the Disbursement Letter, duly executed by each of the parties thereto;
(xiv) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xv) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xvi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xvii) Collateral Access Agreement, as required by the Collateral Agent; and
(xviii) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to such establishment, Availability shall be not less than $100,000,000 40,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on January 31, 2009, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed business plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by quarter, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees and expenses required to be paid to the Agents on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(k) The Administrative Agent 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 USA PATRIOT Act, and shall be satisfied that the Loan Parties are in compliance with all Laws.
(l) 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) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(n) Each Lender shall have received final credit approval to enter into the Agreement and the other Loan Documents (to which it is a party) and for its applicable Commitment, and to perform its obligations thereunder.
(o) The Agents shall have completed, and be satisfied with, its corporate and legal due-diligence of each Loan Party (including, but not limited to solvency), its examination of the Collateral, the Stores and distribution centers of the Loan Parties, and the capital structure of the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Coldwater Creek Inc), Credit Agreement (Coldwater Creek Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, or electronic copies or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) (A) a Committed Loan Note executed by the Borrowers in favor of each Lender requesting a Committed Loan Note, and (B) a Swing Line Loan Note executed by the Borrowers in favor of ▇▇▇▇▇ Fargo Retail Finance, LLC;
(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 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 formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Blank Rome LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of November 30, 2008, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a payoff letter from Wachovia Bank, National Association, the Parent, the Lead Borrower, Moorestown Finance, Inc., ▇▇▇▇▇▇▇▇▇ Assets, Inc. and Urban Renewal, satisfactory in form and substance to the Administrative Agent, evidencing that the Existing Facilities have been or concurrently with the Closing Date are being terminated, all indebtedness thereunder are being paid in full (or, in the case of obligations related to the Existing Letters of Credit, supported by a Letter of Credit), all commitments to make advances thereunder have been terminated, and all Liens securing obligations under the Existing Facilities have been or concurrently with the Closing Date are being released;
(x) [intentionally omitted];
(xi) [intentionally omitted];
(xii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated Consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyhereby (which certificate may be included in the certificate described in clause (vi)(D) above);
(ixxiii) the Security Documents, each duly executed by the applicable Loan Parties;
(xxiv) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixv) the Disbursement Letter, duly executed by each of the parties thereto;
(xvi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xvii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xviii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents (subject only to Permitted Encumbrances) and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts;
(xix) Collateral Access Agreement covering all Real Estate owned by Urban Renewal, duly executed by Urban Renewal and the Arrangersapplicable Loan Parties; and
(xx) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to such establishment, Availability shall be not less than $100,000,000 25,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on January 3, 2009, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present in Aggregate Commitments all material respects the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed business plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees and expenses required to be paid to the Agents on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(k) The Administrative Agent 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 USA PATRIOT Act, and shall be satisfied that the Loan Parties are in compliance with all Laws.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (A.C. Moore Arts & Crafts, Inc.), Credit Agreement (A.C. Moore Arts & Crafts, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 originals, telecopies or telecopies “PDFs” (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each Lender:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the applicable Security Instruments, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Company and the Lead Foreign Borrower;
(ii) a Note Notes executed by each of the Borrowers in favor of each Lender requesting a Notethat has requested Notes;
(iii) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries (or other individuals performing similar functions) 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 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 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 formed, and that each of the Loan Party Parties is validly existing, in good standing or the equivalent thereof (to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, Parties including special counsel to the Loan PartiesForeign Borrower in Luxembourg, and special counsel to the Foreign Guarantor in Poland, in each case, addressed to the Administrative Agent and each Lender (and expressly permitting reliance by successors and assigns of the Administrative Agent and each Lender), as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate for each Company and the Foreign Borrower, as applicable, signed by a Responsible Officer thereof 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, either individually or in the aggregate, to have a Material Adverse Effect and (C) the current Debt Ratings; and
(viii) 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) The Administrative Agent shall have received evidence that all satisfactory to it of the insurance required to be maintained by the Loan Parties pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;Security Agreement.
(viiic) The Administrative Agent shall have received the results of a certificate from the chief financial officer of the Lead BorrowerLien search (including a search as to judgments and tax matters), satisfactory in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in assets of the same type as the Collateral of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Liens permitted pursuant to Section 7.01).
(d) Any fees and expenses required to be paid on or before the Closing Date under the Fee Letters or under any Loan Document shall have been paid.
(e) Unless waived by the Administrative Agent, attesting the Company and the Foreign Borrower, as applicable, each shall have paid all fees, charges and disbursements of counsel to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect Administrative Agent (directly to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably such counsel if requested by the Collateral Agent Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Arrangers Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be filedsatisfied with, registered each document or recorded to create or perfect the first priority Liens intended other matter required thereunder to be created under consented to or approved by or acceptable or satisfactory to a Lender unless the Loan Documents and all such documents and instruments Administrative Agent shall have been so filed, registered or recorded, in each case, received notice from such Lender prior to the reasonable satisfaction of the Collateral Agent and the Arrangersproposed Closing Date specifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Commercial Metals Co), Credit Agreement (Commercial Metals Co)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (or, in the case of the Initial Designated Borrower, an officer of the Initial Designated Borrower authorized to represent the Initial Designated Borrower, as evidenced by a recent extract from the Dutch Trade Register or otherwise), 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 AgentAgent and each of the Lenders:
(i) executed counterparts of (i) this Agreement executed by each Borrower and (ii) the Guaranty Agreement executed by each Borrower and each Material Domestic Subsidiary as of the Closing Date, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of or 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, U.S. counsel to the Loan Parties, and Cravath, Swaine & (ii) ▇▇▇▇▇▇▇ LLP▇. ▇▇▇▇▇▇, Assistant General Counsel of the Company, in each case addressed to the Administrative Agent and each Lender, in form and substance acceptable to the Administrative Agent and each Lender;
(vi) a favorable opinion of NautaDutilh, Dutch counsel to the Loan Parties, in each caseAdministrative Agent, addressed to the Administrative Agent and each Lender Lender, in form and as substance acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)each Lender;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead Borrower, satisfactory Company certifying (A) that the conditions specified in form Sections 4.02(a) and substance to (b) have been satisfied and (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyMaterial Adverse Effect;
(ix) a copy of each of (i) the Security Documents2006 Note Purchase Agreement and (ii) Amendment No. 1 to the 2003 Note Purchase Agreement, in each case duly executed by each party thereto and in form and substance satisfactory to the applicable Loan Parties;Administrative Agent and each Lender; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative 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 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 written notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Watts Water Technologies Inc), Credit Agreement (Watts Water Technologies Inc)
Conditions of Initial Credit Extension. The obligation of the LC 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 electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by 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 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 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 formed, and that each Loan Party the Company is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravathof the Vice President and Corporate Secretary of the Company, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, in substantially the forms of Exhibits I-1 and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingI-2, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)respectively;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a 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 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) the current Debt Ratings and (D) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or Governmental Authority that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiiix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance at least five days prior to the Administrative AgentClosing Date, attesting any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Partiessuch Borrower;
(x) all upon the reasonable request of any Lender made at least 10 days prior to the Closing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other Loan Documentsinformation so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each duly executed by case at least five days prior to the applicable Loan PartiesClosing Date; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any and all fees and expenses of the Administrative Agent, the Arrangers, the Lenders and their respective Affiliates required to be paid on or before the Closing Date shall have been paid.
(c) The Company shall have paid all reasonable and documented fees, expenses and disbursements of McGuireWoods LLP, as counsel to the Administrative Agent, and of special and local counsel to the Lenders retained by the Administrative Agent with respect to any Foreign Obligors, in each case to the extent invoiced prior to the Closing Date (provided that the Company shall remain liable for any additional reasonable fees and expenses of such counsel to the Administrative Agent in accordance with Section 10.04). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Avnet Inc), Credit Agreement (Avnet Inc)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, if applicable, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note executed by the Borrowers Company 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 Company 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 the Company is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formed, and that each Loan Party the Company is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of (x) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each caseCompany, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit I and such other matters concerning the Loan Parties Company and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Company of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or (B) certifying that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Existing Loan Parties on a consolidated basis as of Agreement has been or concurrently with the Closing Date after giving effect to is being terminated and all Liens securing obligations under the transactions contemplated herebyExisting Loan Agreement have been or concurrently with the Closing Date are being released;
(ix) evidence that the Security Documents, each duly executed by the applicable Loan Parties;Opco Credit Agreement shall be effective substantially simultaneously herewith; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (California Water Service Group), Credit Agreement (California Water Service Group)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrowers;
(ii) a Note Notes executed by 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 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 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 formed, and that each of the Borrowers and the other Loan Party Parties is validly existing, and to the extent applicable, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and Cravatheach Lender, Swaine & ▇▇▇▇▇ LLPas to the matters set forth in Exhibit H-1, (ii) NautaDutilh, Dutch and Curaçao counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and that is a Lender on the date hereof, as to the matters set forth in Exhibits H-2 and H-3 respectively, (iii) ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit ▇-▇, ▇▇▇ (▇▇) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit H-5, and in each case such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead each Borrower certifying either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor a certificate signed by a Responsible Officer of the Collateral Agent required under Parent certifying (A) that the Loan Documents conditions specified in Sections 4.02(a) and (b) have been obtained satisfied, and are (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 effectthe aggregate, a Material Adverse Effect;
(viii) a certificate from the chief financial officer duly executed and delivered copy of the Lead Borrower, Subordination Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of Agent subordinating all intercompany indebtedness among the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyObligations substantially in the form of Exhibit G;
(ix) the Security Documents, each a duly executed by and delivered copy of the applicable Loan Parties;
Contribution and Indemnity Agreement among the Guarantors apportioning the rights and obligations of each Guarantor substantially in the form of Exhibit H; and (x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Parent shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Parent and the Administrative 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 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Core Laboratories N V), Credit Agreement (Core Laboratories N V)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative Agent, each Arranger and each of the Lenders:
(i) fully executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Principal Borrower;
(ii) a Note executed by 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 (provided that with respect to all of the above other than resolutions or is similar approval/authority documents, to the extent such materials were delivered in connection with the Existing Revolving Credit Agreement, the Loan Parties shall be a partypermitted to provide certificates of no change with respect to such items);
(iv) copies of each Loan Party’s 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 formed, validly existing and that each Loan Party is validly existing, in good standing and qualified to engage in business in each the jurisdiction where its ownershipof such Loan Party’s incorporation, lease organization, or operation of properties or the conduct of its business requires such qualificationformation, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectas applicable;
(v) a favorable opinion opinions of each of (1) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, and Cravath, Swaine & (2) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel of the Principal ▇▇▇▇▇▇▇▇, and (3) ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel to the Loan PartiesAdministrative Agent, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower chief financial officer of the Principal Borrower:
(A) either (1) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents to which each is a party, and such consents, licenses and approvals shall be in full force and effect, or (2) stating that no such consents, licenses or approvals are so required;
(B) certifying (A1) that immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (x) each Borrower is, and the Loan Parties, taken as a whole, are, Solvent, (y) no Default or Event of Default exists, and (z) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects (or in all respects in the case of a representation or warranty containing a materiality qualifier), (2) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B3) that there has been no event or circumstance since May 2, 2015, 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 EffectEffect (except as qualified in clause (b) below), and (4) the current Credit Ratings; and
(C) either that (1) no consentsdemonstrating compliance, licenses or approvals are required in connection as of the end of the fiscal period ended December 31, 2020, with the executionfinancial covenants contained in Section 7.08 by detailed calculation thereof (which calculation shall be in form satisfactory to the Administrative Agent and which shall include, delivery and performance by such Loan Party and the validity against such Loan Party among other things, an explanation of the Loan Documents to which it is methodology used in such calculation and a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization breakdown of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies components of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;such calculation); and
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuers or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 There shall not have occurred a material adverse change since December 31, 2020 in Aggregate Commitments the business, assets, operations or financial condition of the Borrowers and the other Loan Parties, taken as a whole, or in the facts and information, taken as a whole, regarding such entities as represented to date.
(c) There shall not exist any action, suit, investigation, or proceeding pending or threatened in writing, in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(d) Any fees required to be paid on or before the Closing Date shall have been paid (or provisions reasonably satisfactory to the Administrative Agent shall have been made for the concurrent payment thereof).
(e) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute their reasonable estimate of such fees, charges and disbursements incurred or to be incurred by them through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(f) (i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrowers 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, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Highwoods Realty LTD Partnership), Credit Agreement (Highwoods Realty LTD Partnership)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder hereunder, and of each Existing L/C Issuer to continue the applicable Existing Letter(s) of Credit 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (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 the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Parent Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Request for Credit Extension relating to the initial Credit Extension and dated and delivered to the Administrative Agent at least two Business Days prior to the Closing Date;
(iii) a Note (or Notes, as applicable) executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote (or Notes, as applicable);
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and Safe Harbor 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of Jaffe, Raitt, Heuer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, P.C., Michigan counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit F-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a favorable opinion of ▇▇▇▇ ▇▇▇▇▇, LLP, New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) an opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent;
(ix) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 5.02(a) and (b) have occurredbeen 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;
(xi) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2021, signed by a Responsible Officer of the Borrower;
(xii) a duly completed Unencumbered Asset Certificate prepared on a pro forma basis to account for any acquisitions, dispositions or reclassifications of Properties, and the senior credit facilities incurrence or repayment of the B&N Parties any Indebtedness for borrowed money relating to such Properties, that have closed on or substantially simultaneously with the Closing Dateoccurred since March 31, 2021;
(viixiii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixiv) a certificate from evidence that the chief financial officer Existing SHM Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing SHM Credit Agreement have been or concurrently with the Closing Date are being released (provided that evidence of such release shall be provided in accordance with Section 7.19);
(xv) the Lead Borrowerdocumentation and other information reasonably requested by any Lender at least ten Business Days prior to the Closing Date in connection with applicable “know your customer” and Anti-Corruption Laws, satisfactory including, without limitation, the Patriot Act, the Trading with the Enemy Act and the Beneficial Ownership Regulation, in each case in form and substance reasonably satisfactory to such Lender and delivered at least five Business Days prior to the Closing Date;
(xvi) completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, in each case except to the extent previously delivered to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xixvii) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lenders or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Sun Communities Inc), Credit Agreement (Sun Communities Inc)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by 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 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 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 formed, and that each of the Company and each other Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit H and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)be requested;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a 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 insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;; and
(viiiix) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Swing Line Lender reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed 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 LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) completion of all due diligence with respect to (i) the Borrower, (ii) the Guarantors and (iii) the Properties included in the Borrowing Base on the Closing Date, in each case, in scope and determination satisfactory to the Joint Lead Arrangers and the Lenders in their sole discretion;
(b) The Administrative Agent’s 's receipt of the following, each of which shall be originals originals, telecopies or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower and executed counterparts of the Guaranty;
(ii) a Note Notes executed by the Borrowers 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each the jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed 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 or substantially simultaneously with the Closing Date, the Total Outstandings shall not exceed the Borrowing Base minus any Permitted Unsecured Debt as of the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction last day of the Collateral Agent and fiscal quarter of the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than Borrower ended on March 31, 2013, signed by a Responsible Officer of the Lead Lenders executing this Agreement.Borrower;
Appears in 1 contract
Sources: Credit Agreement (Cole Real Estate Investments, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and by each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerLender;
(ii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrowers in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Notesecretary or assistant secretary of such Loan Party to be true and correct as of 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 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 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 formed, and that the Borrower and each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease of organization or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion opinions of each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, Parties and Cravath, Swaine & ▇▇▇▇▇▇ LLP▇. Post, counsel to Senior Vice President, General Counsel and Corporate Secretary of the Loan PartiesBorrower and Holdings, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance condition since May 2December 31, 2015, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectEffect and (B) the current Debt Ratings; and
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 5.02(a) and (b) have been satisfied;
(b) Any fees required to be paid pursuant to Section 2.09 on or before the Closing Date shall have been paid to the extent invoiced at least one Business Day prior to the Closing Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least one Business Day prior to the Closing Date.
(Cd) either that The Borrower shall have paid all principal, interest, letter of credit fees and breakage costs outstanding on the Closing Date to any lender under the Existing Credit Agreement who, as of the effectiveness of this Agreement shall no longer be a lender, for which invoices have been received.
(1e) no consents, licenses or All material governmental and third party approvals are required necessary in connection with the execution, delivery and performance by such 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 financing contemplated hereby shall have been obtained and are be in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 following, each of which shall following items (except those items that are expressly permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the signing applicable Loan Party, each dated as of 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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative AgentAgreement, each Lender of the Security Instruments and the Lead BorrowerFee Letter;
(ii) a Note Revolving Credit Loan Notes executed by the Borrowers in favor of each Lender requesting a Revolving Credit Loan Note;
(iii) a perfection certificate signed by a Responsible Officer of each Loan Party (the “Closing Date Perfection Certificate”);
(iv) 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 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or organization and in any other jurisdiction in which the conduct of its business requires such qualification, except to the extent that failure to do be so could not reasonably be expected to qualified would have a Material Adverse Effect, including certified copies of such Loan Party’s Constituent Documents, shareholders’ agreements, certificates of good standing and/or qualification to engage in business from each jurisdiction identified on Schedule 5.01 hereto;
(vvi) a favorable opinion of each of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ US LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, acceptable local counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and their successors and assigns, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by a certificates of Responsible Officer Officers of the Lead Borrower certifying Agent or the applicable Loan Parties either (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 identifying all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead 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);
(A) audited financial statements of Holdings and its Subsidiaries from the Initial Cap Table, (E) that executed copies for each of the Spin-Off Agreements are attached thereto three fiscal years immediately preceding the Closing Date and (FB) that the Spin-Off shall have occurredunaudited interim financial statements for Holdings and its Subsidiaries as of September 30, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date2016;
(viix) a certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan Parties, taken as a whole, are Solvent;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyan initial Borrowing Base Certificate;
(ixxiii) if a Borrowing is to be made on the Security DocumentsClosing Date, each duly executed by the applicable Loan Partiesinitial written notice of Borrowing;
(xxiv) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including delivery of Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law or reasonably requested 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 in and to such other Collateral as the Administrative Agent may require;
(xv) Uniform Commercial Code search results through a recent date showing only those Liens as are acceptable to the Administrative Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, Lenders;
(xvi) evidence satisfactory to the reasonable satisfaction Administrative Agent that the consummation of the Collateral Agent Transactions shall be in compliance with all applicable laws and regulations, with the Arrangersreceipt of all material governmental, shareholder and third party consents and approvals relating thereto;
(xvii) copies of all material Floor Plan Loan Documents, all certified as true and correct by the Borrower Agent;
(xviii) executed counterparts of the Post-Closing Agreement;
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Administrative Agent shall be satisfied 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 payment practices, Availability shall be at least $15,000,000.
(e) The Administrative Agent shall have received a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Sections 8.13(a), 8.13(b), 8.13(c) and 8.13(d), calculated after giving pro forma 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 payment practices.
(f) Each of the Floor Plan Intercreditor Agreement, the Frost Bank Subordination Agreement and the IBS Intercreditor Agreement shall have been duly executed and delivered by each party thereto.
(g) The Borrowers shall have delivered to the Administrative Agent the original certificates of title for all Company Vehicles owned by the Borrowers as of the Closing Date.
(h) The Administrative Agent shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Closing Date, including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrowers hereunder, under any other Loan Document and under any agreement with the Administrative Agent or the Arranger. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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, Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) a Borrowing Base Certificate dated the Effective Date, relating to the month ended on November 27, 2010, and executed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Effective Date after giving effect to the transactions contemplated hereby;
(ixx) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixii) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof; and
(xv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the funding of the Term Loan and the initial Revolving Loans on the Effective Date, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including Existing Letters of Credit), Availability shall be not less than $100,000,000 in Aggregate Commitments 50,000,000.
(c) The Administrative Agent shall have be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been received from Lenders other than the Lead Lenders executing this Agreementno Material Adverse Effect since January 31, 2010.
Appears in 1 contract
Sources: Credit Agreement (Cost Plus Inc/Ca/)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2April 30, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have BNED Credit Agreement has closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
(c) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letters of Credit), Availability shall be not less than $300,000,000.
(d) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date and relating to the fiscal month ended on July 4, 2015, duly executed by a Responsible Officer of the Lead Borrower.
(e) All fees required to be paid to the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(f) The Administrative Agent and each Lender 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 USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).
(g) The Lead Lenders shall be reasonably satisfied with the terms and conditions, taken as a whole, of the Spin-Off Agreements to the extent material to the interests of the Lenders.
(h) The Spin-Off shall have occurred, and the BNED Credit Agreement shall close on or substantially simultaneously with the Closing Date.
(i) The payoff of the Existing Credit Agreement (including the termination of commitments thereunder and agreements to terminate, or assign to the Collateral Agent for the benefit of the Secured Parties, all Liens arising thereunder) shall be effected on the Closing Date in accordance with the terms and conditions of the Payoff Letter (including, if applicable, the provision of cash collateral or a Letter of Credit with respect to any Letters of Credit then issued and outstanding under the Existing Credit Agreement). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension Term 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 originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:):
(i) executed counterparts of this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerLenders in such number as the Agent may request;
(ii) a Note executed by the Borrowers 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 or is to be 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 be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require request as 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 each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, LLP addressed to the Administrative Agent and each Lender and on the Closing Date, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of this Section 4.02 4.1 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 to the Solvency of the Loan Parties, on a Consolidated basis, as of the Closing Date after giving effect to the Transactions, and (D) to the knowledge of such Responsible Officer, that (1) no all consents, licenses or approvals are required in connection with US-DOCS\117605822.23 KE 70583695.23 the execution, delivery and performance by such the Loan Party and the validity against such Loan Party Parties of the Loan Documents to which it is a they are party, or (2) that all such consentsif any, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) subject to Section 6.15, evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and all certificates and endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of agent under the Lead Borrower, Existing Term Loan Facility reasonably satisfactory in form and substance to the Administrative AgentAgent evidencing that such loan facility has been terminated, attesting to the Solvency all obligations paid in full, and all Liens securing obligations of the Loan Parties on a consolidated basis as of under such facility have been or concurrently with the Closing Date after giving effect to the transactions contemplated herebyare being released;
(ix) the Security DocumentsDocuments (other than Mortgages and Control Agreements (as such term is defined in the Guaranty and Security Agreement) to be delivered post-closing) and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(x) all other Loan Documentsthe Intercreditor Agreement Joinder, each duly dated as of the date hereof, and fully executed by the applicable ABL Agent, the Agent, and acknowledged by the Loan Parties; and;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.1 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(xii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or statements reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens (subject to the ABL Intercreditor Agreement) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, (B) control agreements to the reasonable satisfaction of extent required under the Collateral Security Documents; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement[Reserved].
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 and the Arrangers 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 Organization Documents and such other documents and certifications as the Administrative Agent and the Arrangers 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 each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇(i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, Parties and Cravath, Swaine & ▇▇▇▇▇ LLP, (ii) such local counsel to the Loan Parties, in each case, case addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent and the Arrangers may reasonably request (including, without limitation, with respect to enforceability, due authorization and authorization, perfection of the Liens in favor of the Collateral AgentAgent and absence of conflicts with specified material agreements);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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, Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and and, except for the endorsements specified on Schedule 4.01(a) hereto which shall be delivered no later than 15 days after the Closing Date, all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from (A) Bank of America, N.A., as agent for the lenders under the Existing Credit Agreement and (B) Bank of America. N.A., as agents for the lenders under the Existing BCNB Credit Agreement, in each case satisfactory in form and substance to the Administrative Agent evidencing that each such credit facility has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;
(ix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated Consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixx) except for the Securities Account Control Agreements specified on Schedule 4.01(b) hereto, which shall be duly executed and delivered no later than 15 days after the Closing Date, the Security DocumentsDocuments (other than the Mortgages), each duly executed by the applicable Loan PartiesParties (it being understood that no Mortgages will be executed and delivered as of the Closing Date);
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixii) results of searches or other evidence reasonably satisfactory to the Collateral Agent and the Arrangers (in each case dated as of a date reasonably satisfactory to the Collateral Agent and the Arrangers) 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 and the Arrangers are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent and the Arrangers for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers, (B) the Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts;
(xiv) certified copies of each of the BNCB Acquisition Documents, including the Seller Notes, as amended and in effect on the Closing Date, duly executed by the parties thereto and in form and substance substantially the same as the form and substance of such agreements and documents dated August __, 2009 delivered to and approved by the Administrative Agent, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request; and
(xv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not The BNCB Acquisition shall have been consummated in accordance with the BNCB Acquisition Documents and in compliance with all applicable Laws and regulatory rules of any Governmental Authority.
(c) After giving effect to (i) the consummation of the BNCB Acquisition, (ii) the first funding under the Loans, (iii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iv) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement400,000,000.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:):
(i) executed counterparts of this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerLenders in such number as the Agent may request;
(ii) a Note executed by the Borrowers 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 or is to be 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 be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require request as 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 each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion opinions of each of Cains Advocates Limited and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPAttorneys PLLC, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and on the Closing Date, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (bSection 4.1(h) and (ci) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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, Effect and (C) either that (1) no consents, licenses or approvals are required in connection with to the execution, delivery and performance by such Loan Party and the validity against such Loan Party Solvency of the Loan Documents to which it is Parties, on a partyConsolidated basis, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization as of the Lead Borrower and its Subsidiaries from Closing Date after giving effect to the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateTransactions;
(vii) subject to Section 6.15, evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and all certificates and endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letters and applicable Lien release documentation (including UCC-3s) from the chief financial officer of agents under the Lead Borrower, MSL Loan Agreement and the NSB Credit Agreement reasonably satisfactory in form and substance to the Administrative AgentAgent evidencing that any such loan facilities have been terminated, attesting to the Solvency all obligations paid in full, and all Liens securing obligations of the Loan Parties on a consolidated basis as of under such facilities have been or concurrently with the Closing Date after giving effect to the transactions contemplated herebyare being released;
(ix) the Security DocumentsDocuments (subject to Section 6.15, in the case of Control Agreements (as such term is defined in the Guaranty and Security Agreement)) and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by a copy of the applicable Loan Parties; andSettlement Agreement;
(xi) stipulations of dismissal of any litigation between Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Triangulum Partners, LLC signed in escrow by individuals with authority to bind Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Triangulum Partners, LLC that are satisfactory in form and substance to the Agent, evidencing that any litigation between Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Triangulum Partners, LLC will be dismissed in its entirety with prejudice upon payment of the sums due under the Settlement Agreement;
(xii) proposed forms of orders agreed to by individuals with authority to bind Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Triangulum Partners, LLC that shall be filed in any litigation between Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Triangulum Partners, LLC upon payment of the sums due under the Settlement Agreement that are reasonably satisfactory in form and substance to the Agent to evidence that the litigation will be dismissed in its entirety with prejudice;
(xiii) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.1 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(xiv) all documents and instruments, including Uniform Commercial Code financing statements, required by law or statements reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all Documents; and
(xv) such documents and instruments shall have been so filedother assurances, registered certificates, documents, consents or recorded, in each case, to opinions as the reasonable satisfaction of the Collateral Agent and the Arrangersreasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Warrant Agreement, duly executed by the Borrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead BorrowerParent;
(ii) a Note executed by 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) require, approving the authority of each Loan Party to enter into terms of, and the transactions contemplated by, this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party party, and (B) 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 each Loan Party’s 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 formed, and that each Loan Party of the Borrowers and Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinion, addressed to the Administrative Agent, Singapore Loan Agent and each Lender, of each of (A) in-house counsel to the U.S. Borrowers and Guarantors as to the matters set forth in Sections 5.01(a), (b) and (c) hereof, (B) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, outside counsel to the Loan Parties, in each case, addressed Parties as to the Administrative Agent other matters set forth in Exhibit G and each Lender and as to such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request request, and (includingC) ▇▇▇▇▇ ▇▇▇▇▇▇ Alliance, without limitationLLC, with respect Singapore counsel to enforceability, due authorization ▇▇▇▇▇▇ Singapore as to the matters set forth in Exhibit G applicable to ▇▇▇▇▇▇ Singapore and perfection such other matters of Singapore law as the Liens in favor of the Collateral Agent)Required Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of each 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) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Parent ended on March 28, 2008, signed by a Responsible Officer of the Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiix) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released, and the Existing Letters of Credit have been made subject to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Partiesa separate reimbursement agreement with Silicon Valley Bank; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2008. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead Borrower;
(ii) a Revolving Loan Note executed by the Borrowers Borrower in favor of each Lender requesting a Revolving Loan Note;
(iii) the Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(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 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Barbados counsel for HOT-Barbados, and ▇▇▇▇▇▇▇, ▇▇▇▇ LLP& ▇▇▇▇▇▇▇ Limited, special Bermuda counsel to the Loan Partiesfor Limited, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Limited certifying (A) that the chief financial officer 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 Lead BorrowerAudited Financial Statements that has had or could be reasonably expected to have, satisfactory either individually or in form the aggregate, a Material Adverse Effect; and substance to the Administrative Agent, attesting to the Solvency (C) a pro forma calculation of the Loan Parties on a consolidated basis as of the Closing Date Leverage Ratio (after giving effect to the transactions contemplated herebyinitial Credit Extension) as of the last day of the fiscal quarter of Limited ended as of August 31, 2014;
(ix) evidence that all Indebtedness incurred pursuant to the Security Documents, each duly executed by Existing Credit Agreement (other than the applicable Loan PartiesExisting Letters of Credit) shall have been repaid in full (or shall be repaid substantially contemporaneously with the initial funding of Loans on the Closing Date) and all commitments in connection therewith shall have terminated;
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Helen of Troy LTD)
Conditions of Initial Credit Extension. The obligation of the LC 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:):
(i) executed counterparts of this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerLenders in such number as the Agent may request;
(ii) a Note executed by 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 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 be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require request as 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 each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of (i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (ii) Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, local UK counsel to the Agent, (iii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., local counsel to certain Loan Parties organized in Delaware, (iv) ▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇, LLP, local counsel to the Loan Party organized in Wisconsin, and (v) general counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead each Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 to the Solvency of the Loan Parties, on a Consolidated basis, as of the Closing Date after giving effect to the transactions contemplated hereby, (D) to the knowledge of such Responsible Officer, that (1) no all consents, licenses or approvals are required in connection with the execution, delivery and performance by such the Loan Party and the validity against such Loan Party Parties of the Loan Documents to which it is a they are party, or (2) that all such consentsif any, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure ; and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that true, correct and complete executed copies of each Separation Agreement have been furnished to the Spin-Off Agent, which Separation Agreements are attached thereto in full force and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateeffect;
(vii) evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) (i) a certificate release from the chief financial officer of agent under the Lead Borrower, SHC Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting Agent evidencing that the Loan Parties liable in respect of the SHC Credit Agreement immediately prior to the Solvency Separation have been or concurrently with the Closing Date are being released as Guarantors under the SHC Credit Agreement and the other “Loan Documents” (as defined in the SHC Credit Agreement), and all Liens securing obligations of the Loan Parties on a consolidated basis as of under the SHC Credit Agreement have been or concurrently with the Closing Date after giving effect are being released, and (ii) to the transactions contemplated herebyextent reasonably requested by the Agent, evidence that all Liens securing obligations of the Loan Parties under the Existing Second Lien Notes (as defined in the SHC Credit Agreement) have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments (other than Mortgages to be delivered post-closing) and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(xA) an appraisal (based on net liquidation value) by a third party appraiser acceptable to the Agent of all other Loan Documents, each duly executed by Inventory of the applicable Loan Parties; and, the results of which are satisfactory to the Agent, and (B) a written report regarding the results of commercial finance examinations of the Loan Parties, which shall be reasonably satisfactory to the Agent;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.01 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent, are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(A) all documents and instruments, instruments (including Uniform Commercial Code financing statements, required by law or ) reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the Credit Card Notifications and Blocked Account Agreements to the extent required pursuant to Section 6.12 hereof shall have been obtained;
(xiii) the Sears Tri-Party Agreement, fully executed by the Agent, the applicable Loan Parties, SHC and certain of its Subsidiaries;
(xiv) the Intercreditor Agreement, fully executed by the Agent and the ArrangersTerm Agent and acknowledged by the applicable Loan Parties; and
(xv) the Agent shall have received such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) Not After giving effect to the initial Credit Extensions hereunder, Availability shall be not less than $100,000,000 150,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on February 28, 2014, and executed by a Responsible Officer of each Borrower.
(d) The Separation shall have occurred, or shall occur substantially simultaneously with the occurrence of the Closing Date.
(e) The Agent shall have received and be satisfied with (i) a Borrowing Base Availability analysis prepared on a monthly basis for the first twelve months after the Closing Date, and (ii) a detailed forecast prepared on a monthly basis for the first twelve months after the Closing Date and on an annual basis thereafter through the Maturity Date, which shall include Consolidated income statement, balance sheet, and statement of cash flow, in Aggregate Commitments each case prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices.
(f) The Domestic Borrower shall have entered into or simultaneously herewith shall enter into the Term Facility and shall have received proceeds therefrom in the sum of $515,000,000.
(g) All fees required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(h) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(i) The Agent and the Lenders 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 USA PATRIOT Act and the Money Laundering Regulations 2007 (UK), Proceeds of Crime ▇▇▇ ▇▇▇▇ (UK) and Terrorism ▇▇▇ ▇▇▇▇ (UK). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Abl Credit Agreement (Lands End Inc)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
Agent and each of the Lenders: (i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Loan Party and the Lead Borrower;
Parent; (ii) a Note executed by 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 and the Parent 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 or the Parent is a party or is to be a party;
; (iviii) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and the Parent is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
good standing is applicable) in the jurisdiction of its organization; (viv) a favorable customary opinion of each of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan PartiesParties and the Parent and (ii) local counsel to the Loan Parties and the Parent located in Bermuda, in Ireland and Nevada, each case, addressed to the Administrative Agent and each Lender Lender, in form and as substance reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request Agent; and (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(viv) a certificate signed by a Responsible Officer of the Lead Borrower Agent certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this satisfied. 83 ▇▇▇▇▇ ▇▇▇▇▇▇ Amended and Restated Credit and Guaranty Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.NYDOCS03/1067767.15
Appears in 1 contract
Sources: Credit and Guaranty Agreement (James Hardie Industries PLC)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer and each Lender to make its initial Credit Extension hereunder this Agreement 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Second Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Second Restatement Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of ▇Bass, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLPPLC, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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) to the Solvency of the Loan Parties as of the Second Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the applicable Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyParties;
(ix) the Security all other Loan Documents, each duly executed by the applicable Loan Parties;
(x) an updated appraisal (based on net liquidation value) by a third party appraiser acceptable to the Agent of all other Loan Documents, each duly executed by Inventory of the applicable Loan Parties; and, the results of which are satisfactory to the Agent;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the 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 or subordination agreements satisfactory to the Agent are being tendered concurrently herewith or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases have been made;
(xii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may require.
(b) Not less After giving effect to (i) any Loans outstanding hereunder, (ii) any charges to the Loan Account made in connection herewith and (iii) all Existing Letters of Credit and any other Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be greater than $100,000,000 in Aggregate Commitments 30,000,000.
(c) The Agent shall have been received from Lenders other than a Borrowing Base Certificate dated the Second Restatement Date, relating to the period ended on November 2, 2019, and executed by a Responsible Officer of the Lead Lenders executing this AgreementBorrower.
Appears in 1 contract
Sources: Credit Agreement (Kirkland's, Inc)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentLenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 Organization Documents from the applicable office of the state of organization of such Loan Party and such other 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, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect, in each case, certified by a Responsible Officer of such Loan Party as to the truthfulness, correctness and completeness of such documents;
(v) a the Coldwater Equity Documents and certificates evidencing the Coldwater Equity being issued thereunder, each duly executed by the Borrower;
(vi) one or more favorable opinion opinions of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent Agents and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, including with respect to enforceability, due authorization the Coldwater Equity and perfection shares of common stock issuable upon conversion thereof (it being understood and agreed that the Liens opinions concerning the Coldwater Equity and shares of common stock issuable upon conversion thereof may be in favor of a separate opinion letter and from separate counsel than the Collateral Agentopinions concerning the Loan Documents);
(vivii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 4.01 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, and (D) there have not been any material change in to the capital structure Solvency of the Loan Parties on a Consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(viii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and capitalization its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateBorrower;
(viiix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all certificates and endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixxi) the Security DocumentsMortgage, each duly executed by the applicable Loan Parties;
(xxii) the Security Agreement, duly executed by the parties thereto;
(xiii) the Environmental Indemnity Agreement, duly executed by the parties thereto;
(xiv) the Pledge Agreements, each duly executed by the parties thereto;
(xv) the Intellectual Property Security Agreements, each duly executed by the parties thereto;
(xvi) the Disbursement Letter, duly executed by each of the parties thereto;
(xvii) the Facility Guaranty, duly executed by each of the parties thereto;
(xviii) the Side Letter, duly executed by each of the parties thereto;
(xix) the Coldwater Creek Side Letter, duly executed by each of the parties thereto;
(xx) an Intercreditor Agreement in form and substance satisfactory to the Agents and duly executed by the parties thereto;
(xxi) the Monitoring Agreement Letter, duly executed by each of the parties thereto;
(xxii) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixxiii) evidence that all other actions that the Agents may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken and the Loan Parties shall have complied with the requirements of Section 6.22 applicable on the Closing Date with respect to any Material Owned Real Estate;
(xxiv) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 Collateral Agent are being tendered concurrently with such Credit Extensions or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xxv) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and Agent;
(xxvi) Collateral Access Agreement for the Arrangerslocation at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ County, West Virginia 26120-3003; and
(xxvii) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments (1) (i) the ABL Credit Agreement shall have been amended or amended and restated in form and substance satisfactory to the Lenders, which amendment shall, among other things, consent to the transactions contemplated by the Loan Documents and make certain related changes which shall be in form and substance satisfactory to the Lenders, and (ii) a Responsible Officer of the Lead Borrower shall have delivered a certificate to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, which certificate shall attach such amendment, any related documents and all other ABL Loan Documents and certify that such documents are true, correct and complete copies of all ABL Loan Documents; (2) the Loan Parties shall have paid in full the Term Loans (as defined in the ABL Credit Agreement as in existence immediately prior to the effectiveness of this Agreement) and documents in form and substance satisfactory to the Administrative Agent evidencing such payoff (and related lien release) shall have been delivered to the Administrative Agent; and (3) the ABL Credit Agreement shall be in full force and effect and no default or event of default shall exist under the ABL Credit Agreement, or would result from the making of the Loans or the consummation of the other transactions contemplated to be made on the Closing Date hereunder or from the application of the proceeds thereof.
(c) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(d) The Administrative Agent shall have received and be satisfied with (i) a detailed business plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by quarter, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices, (ii) the most recent inventory appraisal and field examination conducted under the ABL Credit Agreement, (iii) the Loan Parties’ financial statements for the month of May and (iii) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(e) There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or governmental authority that, singly or in the aggregate, materially impairs the making of the Loans or the issuance of the Equity Interests under the Coldwater Equity Documents, or any of the other transactions contemplated by the Loan Documents, or that could have a Material Adverse Effect.
(f) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) All fees, expenses and other amounts required to be paid to the Credit Parties on or before the Closing Date shall have been paid in full.
(i) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agents and the Lenders to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute the Agents’ and the Lenders’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts among the Borrowers, the Agents and the Lenders).
(j) The Agents and the Lenders 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 USA PATRIOT Act, and shall be satisfied that the Loan Parties are in compliance with all Laws.
(k) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(l) The Agents shall have completed, and be satisfied with, the results of due diligence investigation of the Loan Parties (including management conversations and any background checks for the Loan Parties’ senior management and key principals).
(m) The representations and warranties of each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects, and (iii) for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(n) No Default or Event of Default shall exist, or would result from Lenders the making of the Loans or the consummation of the other transactions contemplated to be made on the Closing Date hereunder or from the application of the proceeds thereof.
(o) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the extending of such credit shall have been issued and remain in force by any Governmental Authority against any Borrower, any Agent, any Lender or any of their Affiliate.
(p) No event or circumstance which could reasonably be expected to result in a Material Adverse Effect shall have occurred.
(q) The Loan Parties shall have Liquidity, after giving effect to the transactions contemplated by this Agreement (including, without limitation, the payment in full of the Term Loans (as defined in the ABL Credit Agreement) and the payment of any overdue accounts payable), is at least $85,000,000. Notwithstanding anything herein to the contrary, for purposes of calculating Liquidity for this Section 4.01(q) only, (i) Liquidity shall be calculated using the Borrowing Base from the Borrowing Base Certificate delivered pursuant to Section 4.01(t), relating to the month ended on June 30, 2012, and (ii) the Borrowing Base shall be calculated (A) as though all In-Transit Inventory (as defined in the ABL Credit Agreement as in effect as of the Closing Date) were Eligible In-Transit Inventory (as defined in the ABL Credit Agreement as in effect as of the Closing Date) notwithstanding whether such In-Transit Inventory constitutes Eligible In-Transit Inventory under the ABL Credit Agreement as of June 30, 2012 or the Closing Date, and (B) without giving effect to the cap on the amount of In-Transit Inventory that is permitted to be Eligible In-Transit Inventory pursuant to the ABL Credit Agreement.
(r) The Administrative Agent shall have received evidence that MPH Corp., a Delaware corporation, has been dissolved in a manner that is satisfactory to the Administrative Agent.
(s) The Collateral Agent for the benefit of the Credit Parties shall have (i) a first-priority, perfected Lien (subject in priority only to Permitted Encumbrances) on all of the Term Loan Priority Collateral and the Loan Parties shall have taken all necessary actions in connection therewith, including, among other things, the Loan Parties (or the ABL Agent, if currently in its possession) shall have delivered to the Collateral Agent (A) to the extent such Equity Interests are “securities” pursuant to Article 8 of the UCC, the originals of the executed Equity Interest Certificates evidencing the Equity Interest of each Person pledged pursuant to the Pledge Agreement or the Security Agreement and the corresponding Equity Interest powers executed in blank and (B) to the extent required to be delivered pursuant to the Security Agreement, the originals of any executed promissory notes evidencing Term Loan Priority Collateral and corresponding allonges executed in blank and (ii) a security interest in all of the ABL Priority Collateral superior in priority to all other Persons other than Persons with Permitted Encumbrances, and the Loan Parties shall have taken all necessary actions in connection therewith.
(t) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2012, and executed by a Responsible Officer of the Lead Lenders executing this Agreement.Borrower. Notwithstanding anything herein to the co
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation obligations of the LC Issuer Lenders and each Lender L/C Issuers to make its their initial Credit Extension Extensions 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead BorrowerCompany;
(ii) a Note Notes executed by 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 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 Document Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Document Party is duly organized or formed, and that each Loan Document Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 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 each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Document Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent Agent, each L/C Issuer and each Lender and Lender, as to the matters set forth in Exhibit O and such other matters concerning the Loan Document Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)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 Company certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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) either that the current Debt Ratings;
(1viii) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party a duly completed Compliance Certificate as 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, (D) there have not been any material change in the capital structure and capitalization last day of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies fiscal quarter of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with Company most recently ended prior to the Closing Date, signed by a Responsible Officer of the Company;
(viiix) except as 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 collateral 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-U.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 Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixi) a certificate from evidence that all amounts owing under the chief financial officer of Existing Credit Agreement have been or concurrently with the Lead BorrowerClosing Date are being paid; and
(xii) such other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuers, or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before August 31, 2006. 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 and L/C Issuer 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 or L/C Issuer unless the Administrative Agent shall have received notice from Lenders other than such Lender or L/C Issuer prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Solectron Corp)
Conditions of Initial Credit Extension. The obligation of the LC 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 electronic transmissions by portable document format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrowers;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (1) M▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ Bockius, LLP, counsel to the Loan Parties, (2) local counsel to the Borrowers in each state where there is Eligible Real Estate and Cravath, Swaine & ▇▇▇▇▇ LLP, (3) local counsel to the Loan Parties, Parties in each casestate where such Loan Parties are organized, each addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Administrative Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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, Effect and (C) other than those which, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from Bank of America, N.A., agent for the lenders under the Existing Credit Agreement 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, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) a certificate from the chief financial officer of the Lead Administrative Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on taken as a consolidated basis whole as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixx) the Security DocumentsDocuments (including, without limitation, the Mortgages and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank), each duly executed by the applicable Loan Parties;
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xiA) appraisals by a third party appraiser engaged by the Collateral Agent of all Inventory and Prescription Files of the Borrowers, the results of which are reasonably satisfactory to the Collateral Agent and (B) a written report regarding the results of a field examination of the Borrowers, which shall be reasonably satisfactory to the Collateral Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments (other than the Mortgages) shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent (or arrangements satisfactory to the Collateral Agent in its discretion for such filing, registration or recordation shall have been made), and (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof;
(xv) evidence that all other actions that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(xvi) with respect to each parcel of Eligible Real Estate, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts reasonably acceptable to the Collateral Agent, issued by First American Title Insurance Company or other title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) as the Collateral Agent may deem reasonably necessary or desirable;
(xvii) With respect to each parcel of Eligible Real Estate, an environmental assessment report, in form and substance reasonably satisfactory to the Collateral Agent, from ARI Consultants, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any facilities of the Borrowers or any of their Subsidiaries, and the ArrangersCollateral Agent shall be reasonably satisfied with the nature and amount of any such matters;
(xviii) an appraisal of each of the properties described in the Mortgages complying with the requirements of FIRREA by a third party appraiser engaged by the Collateral Agent and otherwise in form and substance reasonably satisfactory to the Collateral Agent; and
(xix) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued (or deemed issued) at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $100,000,000 78,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Period ended on December 3, 2011 and executed by a Responsible Officer of the Administrative Borrower.
(d) The Administrative Agent shall be reasonably satisfied with the capital structure (including outstanding indebtedness) of Parent and its Subsidiaries.
(e) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present in Aggregate Commitments all material respects the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(f) The Administrative Agent shall have received and be reasonably satisfied with (i) forecasted consolidated financial statements of Parent and its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent, consisting of (A) balance sheets, income statements, and cash flow statements (including a calculation of Availability) on a monthly basis for fiscal year 2012, and (B) balance sheets, income statements, and cash flow statements (including a calculation of Availability) on an annual basis for each Fiscal Year thereafter through the Fiscal Year in which the Maturity Date occurs, and (ii) internally prepared balance sheets, income statements, and a cash flow statement as of the Fiscal Quarter ended October 8, 2011.
(g) There shall not be pending any action, suit, investigation, litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(h) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(i) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(j) All fees required to be paid to the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Borrowers shall have paid all reasonable fees, charges and disbursements of the Agents, the Arrangers and the Lenders to the extent invoiced at least two (2) Business Days prior to the Closing Date.
(l) The Agents and the Arrangers shall have received, at least ten (10) days prior to the Closing Date, all documentation and other information reasonably requested by the Agents and the Arrangers in writing and reasonably determined to be required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(m) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Nash Finch Co)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Post-Closing Agreement, and each of the Collateral Documents (other than those specifically provided for in the Post-Closing Agreement), sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrowers;
(ii) a Revolving Credit Note executed by the Borrowers in favor of each Lender requesting a Revolving Credit 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPBRL Law Group LLC, as counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, in form and as substance reasonably acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead each Borrower certifying either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the consummation by such Loan Party of the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of Holdings 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 insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from , together with the chief financial officer certificates of the Lead Borrowerinsurance, satisfactory in form and substance to naming the Administrative Agent, attesting on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Solvency assets and properties of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebythat constitutes Collateral;
(ix) the Security Documentsa Borrowing Base Certificate dated as of December 31, each 2009, duly executed certified by the applicable Loan Partieschief executive officer, chief financial officer, treasurer or controller of Holdings relating to the initial Credit Extension;
(x) all other Loan Documentsa duly completed Compliance Certificate as of the last day of the fiscal quarter of Holdings ended October 31, each duly executed 2009, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xi) monthly financial statements as of December 31, 2009 in the applicable Loan Partiesform required by Section 6.01(b); and
(xixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or any Lender reasonably may require.
(i) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and (ii) all documents fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and instruments, including Uniform Commercial Code financing statements, required by law or reasonably disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Collateral Administrative Agent or the Lenders) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent and the Arrangers Lenders). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be filedsatisfied with, registered each document or recorded to create or perfect the first priority Liens intended other matter required thereunder to be created under consented to or approved by or acceptable or satisfactory to a Lender unless the Loan Documents and all such documents and instruments Administrative Agent shall have been so filed, registered or recorded, in each case, received notice from such Lender prior to the reasonable satisfaction of the Collateral Agent and the Arrangersproposed Closing Date specifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower or the Guarantor, as 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerGuaranty;
(ii) a Note executed by the Borrowers 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 a secretary or assistant secretary of each Loan Party or its general partner 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 partyDocuments;
(iv) copies of each Loan Party’s 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 formed, and that the general partner of each Loan Party is validly existing, duly organized and in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens set forth in favor of the Collateral Agent)Exhibit G;
(vi) a favorable opinion of ▇▇▇▇▇ Lord Bissell & Liddell LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H;
(vii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all party and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying that (A) no Default exists, satisfactory in form (B) the representations and substance to the Administrative Agent, attesting to the Solvency warranties of the Loan Parties on a consolidated basis as Borrower contained in Article V are true and correct, and (C) there has been no event or circumstance since the date of the Closing Date after giving Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; (2) a material impairment of the ability of the Borrower to perform its obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the transactions contemplated herebylegality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party;
(ix) a certificate signed by a Responsible Officer of the Security DocumentsGuarantor 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, each duly executed by either individually or in the applicable aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Guarantor and its Subsidiaries taken as a whole; (2) a material impairment of the ability of the Guarantor to perform its obligations under any Loan PartiesDocument to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Guarantor of any Loan Document to which it is a party;
(x) evidence of termination of all other Loan Documents, each duly executed by commitments to extend credit under the applicable Loan PartiesExisting Credit Agreement and repayment of all amounts owed thereunder prior to or simultaneously with the Closing Date; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender, or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (ONEOK Partners LP)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer and each Lender to make its initial Credit Extension hereunder this Agreement 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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) to the Solvency of the Loan Parties as of the Effective Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the applicable Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyParties;
(ix) the Security all other Loan Documents, each duly executed by the applicable Loan Parties;
(x) all results of searches or other Loan Documents, evidence reasonably satisfactory to the Agent (in each duly executed by case dated as of a date reasonably satisfactory to the applicable Agent) indicating the absence of Liens on the assets of the Loan Parties; and, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements satisfactory to the Agent are being tendered concurrently herewith or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases have been made;
(xi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained; and
(xii) such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may require.
(b) Not less After giving effect to (i) any Loans outstanding hereunder, (ii) any charges to the Loan Account made in connection herewith and (iii) all Existing Letters of Credit and any other Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be greater than $100,000,000 20,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Effective Date, relating to the month ended on July 31, 2011, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Agent and the Lenders shall have received and be satisfied with (i) updated projections, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(i) All fees required to be paid to the Agent or the Arranger on or before the Effective Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Effective Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Effective Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(k) The Agent and the Lenders 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 USA PATRIOT Act.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Effective Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Kirkland's, Inc)
Conditions of Initial Credit Extension. The obligation of the LC 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 originals, telecopies or telecopies “PDFs” (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each Lender:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the applicable Security Instruments, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Company and the Lead Foreign Borrower;
(ii) a Note Notes executed by each of the Borrowers in favor of each Lender requesting a Notethat has requested Notes;
(iii) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries (or other individuals performing similar functions) 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 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 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 formed, and that each of the Loan Party Parties is validly existing, in good standing or the equivalent thereof (to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, Parties including special counsel to the Loan PartiesForeign Borrower in Luxembourg, and special counsel to the Foreign Guarantor in Poland, in each case, addressed to the Administrative Agent and each Lender (and expressly permitting reliance by successors and assigns of the Administrative Agent and each Lender), as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate for each Company and the Foreign Borrower, as applicable, signed by a Responsible Officer thereof 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, either individually or in the aggregate, to have a Material Adverse Effect and (C) the current Debt Ratings; and
(viii) 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) The Administrative Agent shall have received evidence that all satisfactory to it of the insurance required to be maintained by the Loan Parties pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;Security Agreement.
(viiic) The Administrative Agent shall have received the results of a certificate from the chief financial officer of the Lead BorrowerLien search (including a search as to judgments and tax matters), satisfactory in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in assets of the same type as the Collateral of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Liens permitted pursuant to Section 7.01).
(d) Any fees and expenses required to be paid on or before the Closing Date under the Fee Letters or under any Loan Document shall have been paid.
(e) Unless waived by the Administrative Agent, attesting the Company and the Foreign Borrower, as applicable, each shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(f) The Administrative Agent shall have received a Solvency Certificate signed by a Responsible Officer of the Company as to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date Company and its Subsidiaries, both before and after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created initial Borrowings under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersother transactions contemplated hereby.
(bg) Not less than $100,000,000 in Aggregate Commitments At least three (3) Business Days prior to the proposed Closing Date, and upon the reasonable request of any Lender, the Company shall have been 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, and 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.
(h) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note [reserved];
(iii) the Security Agreement executed by the Borrowers Borrower, each Material Subsidiary and the Collateral Agent;
(iv) executed counterparts of the Intercreditor Agreement executed by each party thereto;
(v) Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iiivi) 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) authorizing and approving the authority transactions contemplated hereunder and the execution, delivery and performance 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) 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;
(ivvii) copies of the Organization Documents of each Loan Party’s Organization Documents Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such other Loan Party to be true and correct as of the Closing Date;
(viii) 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 each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vix) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Coie LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vix) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurred, and been satisfied; (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viixii) UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s discretion, to perfect the Collateral Agent’s security interest in the Collateral;
(xiii) duly executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to perfect the Collateral Agent’s security interest in the United States registered intellectual property of the Loan Parties;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and names the Collateral Agent as additional insured (in the case of liability insurance) or lender’s loss payee (in the case of hazard insurance) on behalf of the Secured Creditors (as defined in the Intercreditor Agreement); and
(xv) a certified copy of the amendment to the Prudential Note Agreement, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Receipt by the Administrative Agent, the Arranger and the Lenders of any fees required to be paid on or before the Closing Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all endorsements fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Administrative Agent and its counsel shall be satisfied that the security interests described in the Security Agreement have been perfected and such security interests constitute first liens on the Collateral in favor of the Collateral Agent required under for the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer benefit of the Lead Borrower, satisfactory in form and substance Lenders subject to the Administrative Agent, attesting rights of parties to the Solvency Intercreditor Agreement. Without limiting the generality of the Loan Parties on a consolidated basis as provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersspecifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Northwest Pipe Co)
Conditions of Initial Credit Extension. The obligation of the LC 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:): 9656966v810314033v12
(i) executed counterparts of this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerLenders in such number as the Agent may request;
(ii) a Note executed by 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 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 be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require request as 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 each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ Latham & ▇▇▇kin▇ ▇▇▇ LLP, counsel ▇ddressed to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and on the Closing Date, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 to the Solvency of the Loan Parties, on a Consolidated basis, as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) to the knowledge of such Responsible Officer, that (1) no all consents, licenses or approvals are required in connection with the execution, delivery and performance by such the Loan Party and the validity against such Loan Party Parties of the Loan Documents to which it is a they are party, or (2) that all such consentsif any, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure ; and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that true, correct and complete executed copies of each Separation Agreement have been furnished to the Spin-Off Agent, which Separation Agreements are attached thereto in full force and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateeffect;
(vii) evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and and, subject to Section 6.11, all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of agent under the Lead Borrower, existing revolving credit facility reasonably satisfactory in form and substance to the Administrative AgentAgent evidencing that such loan facility has been terminated, attesting to the Solvency all obligations paid in full, and all Liens securing obligations of the Loan Parties on a consolidated basis as of under such facility have been or concurrently with the Closing Date after giving effect to the transactions contemplated hereby;are being released; 9656966v810314033v12
(ix) subject to Section 6.16, the Security DocumentsDocuments and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(xA) an appraisal (based on net liquidation value) by a third party appraiser acceptable to the Agent of all other Loan Documents, each duly executed by Inventory of the applicable Loan Parties; and, the results of which are satisfactory to the Agent, and (B) a written report regarding the results of commercial finance examinations of the Loan Parties, which shall be reasonably satisfactory to the Agent;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.01 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent, are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(A) all documents and instruments, instruments (including Uniform Commercial Code financing statements, required by law or ) reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens (subject to the Intercreditor Agreement) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements to the extent required pursuant to Section 6.12 hereof shall have been obtained;
(xiii) the Sears Tri-Party Agreement, fully executed by the Agent, the applicable Loan Parties, SHC and certain of its Subsidiaries[reserved];
(xiv) the Intercreditor Agreement Joinder, fully executed by Agent and Term Agent, and acknowledged by the Loan Parties; and
(xv) the Agent shall have received such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) Not After giving effect to the initial Credit Extensions hereunder, Availability shall be not less than $100,000,000 150,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on October 27, 2017, and executed by a Responsible Officer of each Borrower.
(d) [Reserved].
(e) The Agent shall have received and be satisfied with (i) a Borrowing Base Availability analysis prepared on a monthly basis for December 2017, January 2018 and the Fiscal Year 2018, and (ii) a detailed forecast prepared on a monthly basis for December 2017, January 2018 and the Fiscal Year 2018, and on an annual basis thereafter through the Maturity Date, which shall include Consolidated 9656966v810314033v12 income statement, balance sheet, and statement of cash flow, in Aggregate Commitments each case prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices.
(f) [Reserved].
(g) All fees and expenses required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(h) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(i) The Agent and the Lenders shall have received, at least four (4) Business Days prior to the Closing Date, 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 USA PATRIOT Act requested by the Agent or Lenders seven (7) Business Days prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Lands' End, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Security Agreement, the Intellectual Property Security Agreement, the Securities Pledge Agreement, the Guaranty Agreement, and any other Loan Document required to be delivered with respect to the Guarantors, the Collateral or otherwise, in each case sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerSEI;
(ii) a Note executed by the Borrowers each 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 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 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 formed, and that each such Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse EffectEffect (which such jurisdictions are set forth on Schedule 4.01(a)(iv));
(v) a the favorable written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of each (A) special counsel to SEI and any Loan Party organized under the laws of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPthe United States of America, any state or territory thereof (other than Puerto Rico) or the District of Columbia, (B) special counsel to the Loan PartiesPR Borrowers and any PR Guarantor, and Cravath, Swaine & ▇▇▇▇▇ LLP, (C) special local counsel to one or more of the Loan PartiesParties in each jurisdiction listed on Schedule 4.01(a)(v), in each casecase dated the Closing Date, addressed to the Administrative Agent, the Collateral Agent and each Lender the Lenders and as satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying SEI that (A) that the conditions specified in clauses either (a), (bx) and (c) attaches copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (Dy) states that no such consents, licenses or approvals are so required, (B) certifies that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (C) certifies that there have not has been any material change 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 capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tableaggregate, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datea Material Adverse Effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect, together with the certificates of insurance, naming the Collateral Agent, on behalf of the Senior 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 constitutes Collateral;
(viii) a certificate from the chief financial officer evidence of the Lead Borrowerdelivery of any Uniform Commercial Code financing statements or amendments, satisfactory sufficient in form and substance each case for filing in all places required by applicable United States law to perfect the Liens of the Collateral Agent or the Administrative Agent under the Security Instruments as a first priority Lien (subject to Permitted Liens) as to items of Collateral in which a security interest may be perfected by the filing of financing statements, to the extent deemed necessary or appropriate by the Administrative AgentAgent or the Collateral Agent to maintain the perfection in Collateral existing under the Existing Agreement and related documents, attesting or to the Solvency of perfect a security interest in any new or additional Collateral provided in connection with this Agreement and the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyDocuments;
(ix) such other documents and/or evidence of other actions as may be necessary under applicable United States law to perfect, or maintain the perfection of, the Liens of the Collateral Agent under the Security DocumentsInstruments as a first priority Lien (subject to Permitted Liens) in and to such other Collateral as the Collateral Agent or the Administrative Agent may require, including without limitation, the delivery by SEI and each Subsidiary owning any Pledged Interests of all stock certificates evidencing Pledged Interests not already in possession of the Collateral Agent, or that are necessary to correct the certificate in the possession of the Collateral Agent evidencing such Pledged Interest (whether the identity of the record owner or issuer, the number or type of shares, or otherwise), accompanied in each case by duly executed by the applicable Loan Partiesstock powers (or other appropriate transfer documents) in blank affixed thereto;
(x) all Uniform Commercial Code search results showing only Permitted Liens and such other Loan DocumentsLiens as are acceptable to the Lenders;
(xi) a duly completed certificate reflecting the calculations set forth in Sections I through IV, each duly executed VII and VIII of the Compliance Certificate, as of the last day of the fiscal quarter of SEI ended April 30, 2009, signed by an Executive Officer of SEI; provided that Consolidated EBITDA, Consolidated Interest Expense and Consolidated Lease Payments shall be calculated for the applicable Loan PartiesFour-Quarter Period ending on January 31, 2009; and
(xixii) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or reasonably requested by opinions as the Administrative Agent, the Collateral Agent and Agent, the Arrangers to be filedL/C Issuer, registered the Swing Line Lender or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the ArrangersRequired Lenders reasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date (provided that after the Closing Date, the Borrowers acknowledge that there will be a final settling of accounts between the Borrowers and the Administrative 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 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers 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 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 Organization Documents and such other documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is Guarantor is, validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel Parties acceptable to the Loan Parties, in each caseAgent, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect in form and substance satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso 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, and (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 7.12 as of the last day of the fiscal quarter of Borrower ended April 2, 2011;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiiix) a certificate from evidence that the chief financial officer commitments under each of (a) the Lead Credit Agreement dated as of July 21, 2006, as amended or modified, among Borrower, satisfactory in form Bank of America, N.A., as agent and substance to a syndicate of lenders (the Administrative Agent, attesting to “Existing Credit Agreement”) and (b) the Solvency of the Existing Loan Parties on a consolidated basis as of Agreement have been or concurrently with the Closing Date after giving effect are being terminated, and that all loans and obligations thereunder have been paid in full (except to the transactions contemplated hereby;
(ixextent being so repaid with the initial Loans) the Security Documents, each duly executed by the applicable Loan Parties;and any and all liens thereunder shall have been terminated; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as Agent or the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and 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 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specifiedor electronic facsimiles, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to Agreement, the Administrative Agent, each Lender Parent Guaranty and the Lead BorrowerOpco Guaranty;
(ii) a Note executed by the Borrowers each 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 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 Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and each of its Subsidiaries is duly organized or formed, formed and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of B▇▇▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, a favorable opinion of the General Counsel of the General Partner, and Cravath, Swaine & ▇▇▇▇▇ LLP, a favorable opinion of special Colorado counsel to the Loan PartiesWIC, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G-1, G-2 and G-3 respectively and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate of a Responsible Officer of the MLP either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents, 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 MLP certifying that (A) that the conditions specified in clauses (a), (b) both before and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of MLP Offering Closing, the transactions contemplated under this Agreement Initial Asset Acquisition and the other Loan Documents Borrowing on the Closing Date Date, (including a) the representations and warranties of the MLP and the Borrowers contained in Article V or any Loans made or Letters other Loan Document are true and correct in all material respects on and as of Credit issued hereunder))such date, and (b) no Default exists, and (B) that there has been no event or circumstance since May 2December 31, 2015, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, (a) a Material Adverse Effectmaterial adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (C) either that (1) no consentsactual or contingent), licenses or approvals are required financial condition of the businesses acquired by the MLP in connection with the executionInitial Asset Acquisition taken as a whole, delivery or the MLP and performance by such any of its Subsidiaries, taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party and the validity against such to perform its obligations under any Loan Party of the Loan Documents Document to which it is a party, ; or (2c) that all such consentsa material adverse effect upon the legality, licenses and approvals have been obtained and are in full force and effectvalidity, (D) there have not been binding effect or enforceability against any material change in the capital structure and capitalization Loan Party of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required any Loan Document to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectwhich it is a party;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerMLP certifying that (A) the MLP Offering Closing has been, satisfactory or substantially concurrently with delivery of such certificate is being, consummated on the Closing Date on the terms described in form the MLP Registration Statement and substance in compliance with applicable Laws; and (B) the Initial Asset Acquisition has been, or substantially concurrently with delivery of such certificate is being, consummated on the Closing Date on the terms described in the MLP Registration Statement and in compliance with applicable Laws and that after giving effect thereto, the MLP and its Restricted Subsidiaries shall own the Acquired Assets free and clear of all Liens other than Permitted Liens;
(ix) a certificate signed by a Responsible Officer of the MLP (A) attaching a calculation of the pro forma Leverage Ratio of the MLP as of September 30, 2007 after giving effect to the Administrative AgentInitial Asset Acquisition and the Credit Extensions on the Closing Date, attesting to (B) certifying that the Solvency of the Loan Parties on a consolidated basis Available Amount as of the Closing Date after giving effect is not less than $40,000,000, and attaching a calculation of such amount; and (C) certifying as to the transactions contemplated hereby;
(ix) the Security Documentscurrent Debt Ratings, each duly executed by the applicable Loan Parties;if any; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees invoiced at least one Business Day before the Closing Date and required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead each Borrower;
(ii) a Note executed by the Borrowers each Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of each of the other Loan Documents;
(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 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) and attaching thereto certified copies of the Organization Documents of each Loan Party’s Organization Documents and ;
(v) such other 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 each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of (A) ▇▇▇▇▇▇▇ Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each of Lender and (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan PartiesSaucony Canada, Inc., in each case, addressed in form and substance satisfactory to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the Acquisition and the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, Borrowers certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.2(a) and (b) have occurred, been satisfied and (B) certifying as to the senior credit facilities calculation of the B&N Parties have closed on or substantially simultaneously with the Closing DateConsolidated EBITDA specified in clause (xvi) below;
(viiix) a duly completed Compliance Certificate as of the last day of the last fiscal quarter ended for each of SRC and Target, with the Consolidated Leverage Ratio and Consolidated Tangible Net Worth therein to be calculated on a pro forma basis giving effect to the Acquisition, signed by a Responsible Officer of the Borrowers;
(x) (A) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effecteffect and (B) certificates of insurance from an independent insurance broker dated as of the Closing Date, identifying insurers, types of insurance, insurance limits, and policy terms, and otherwise describing the insurance obtained in accordance with this Agreement;
(viiixi) payoff letters evidencing that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated and all Liens securing obligations under the Existing Credit Agreements have been or concurrently with the Closing Date are being released;
(xii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead Borrower, satisfactory in form Borrowers attaching true and substance to the Administrative Agent, attesting to the Solvency complete copies of the Loan Parties on a consolidated basis Acquisition Documents;
(xiii) the Audited Financial Statements, the unaudited pro forma financial statements and the forecasts, each referred to in Section 5.5;
(xiv) an officer’s certificate signed by the treasurer of SRC and dated as of the Closing Date after giving effect as to the solvency of SRC and the Subsidiaries following the consummation of the Acquisition and the other transactions contemplated hereby;
(ixxv) results of UCC searches (and the Security Documentsequivalent thereof in all foreign jurisdictions) with respect to the Collateral, each duly executed by indicating no Liens other than Liens permitted under Section 7.1 and otherwise in form and substance satisfactory to the applicable Loan PartiesAdministrative Agent;
(xvi) satisfactory evidence that Consolidated EBITDA (calculated on a pro forma basis after giving effect to the Acquisition and the other transactions contemplated hereby) for the twelve months ended as of the last day of the last fiscal quarter ended for each of SRC and Target, was not less than $62,000,000;
(xvii) all stock certificates and related instruments of transfer with respect to the Equity Interests of each Subsidiary pledged to the Administrative Agent pursuant to the Pledge Agreement;
(xviii) (A) a certificate signed by a Responsible Officer of the Borrowers certifying (x) all other Loan Documents, each the value of SRC and the Subsidiaries of SRC existing immediately prior to the Acquisition and (y) the value of the Target and (B) a duly executed by the applicable Loan Partiescompleted Federal Reserve Form U-1; and
(xixix) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 The Security Documents shall be effective to create in Aggregate Commitments favor of the Administrative Agent a legal, valid and enforceable first (except for Liens permitted by Section 7.1 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 evidence thereof in form and substance satisfactory to the Administrative Agent.
(c) The Acquisition shall have been consummated in accordance with the terms of the Acquisition Documents (as amended or modified with the consent of the Lenders as required below) and in compliance with applicable law and regulatory approvals and the terms and conditions of the Acquisition Documents shall not have been altered, amended or otherwise changed or supplemented or any condition therein waived without the prior written consent of the Lenders.
(d) All applicable waiting periods without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on the Borrowers and the Subsidiaries in connection with the Acquisition and the other transactions contemplated hereby or that could seek or threaten any of the foregoing shall have expired.
(e) No event or circumstance since June 1, 2005 shall have occurred that has had or could be reasonably expected to have, either individually or in the aggregate, a Closing Material Adverse Effect or a Target Material Adverse Effect.
(f) No changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding any Borrower, the Target and/or their respective Subsidiaries or the Acquisition after June 1, 2005 that purports to materially and adversely affect the Acquisition or the other transactions contemplated hereby.
(g) The Lenders shall have received satisfactory evidence of the absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(h) The Lenders shall have received satisfactory evidence that all loans made by the Lenders to the Borrowers or any of its affiliates shall be in full compliance with the Federal Reserve’s margin regulations.
(i) The Lenders shall be satisfied that (i) each Borrower, the Target and their respective Subsidiaries will be able to meet its obligations under all Plans, (ii) the Plans are, in all material respects, funded in accordance with the minimum statutory requirements, and (iii) no ERISA Event has occurred.
(j) Any fees required to be paid on or before the Closing Date shall have been paid.
(k) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(l) The Closing Date shall have occurred on or before November 30, 2005. Without limiting the generality of the provisions of Section 9.4, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Stride Rite Corp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Committed Loan Note executed by the Borrowers in favor of each Lender requesting a Committed Loan Note, and (B) a Swing Line Loan Note executed by the Borrowers in favor of ▇▇▇▇▇ Fargo Retail Finance, LLC;
(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 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 formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the certain Security DocumentsDocuments and certificates evidencing any stock being pledge thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xiv) Collateral Access Agreement, as required by the Collateral Agent;
(xv) Freight forwarder agreements, as required by, and in form and substance satisfactory to, the Collateral Agent; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not less than $100,000,000 The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date for the then most recently ended fiscal week, and executed by a Responsible Officer of the Lead Borrower.
(c) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(d) The Administrative Agent shall have received and be satisfied with (i) a detailed Business Plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any default of any Material Contract or adverse change in the business, assets, operations, trade support, condition (financial or otherwise) or prospects of any Loan Party, which would reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) All fees and expenses required to be paid to the Agents pursuant to Sections 2.03, 2.09 and 10.04 and on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(i) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(j) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(k) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(l) Each Lender shall have received final credit approval to enter into the Agreement and the other Loan Documents (to which it is a party) and for its applicable Commitment, and to perform its obligations thereunder.
(m) The Agents shall have completed, and be satisfied with, its corporate and legal due-diligence of each Loan Party (including, but not limited to solvency), its examination of the Collateral, the Stores and distribution centers of the Loan Parties, and the capital structure of the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Iparty Corp)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension and of the Administrative Agent to endeavor to cause the L/C Issuer to issue its initial Credit Extension hereunder is on the Closing Date were 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPDay, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Specified Financial Statements of the type described in clause (ii) of the definition thereof that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from The Huntington National Bank under the chief financial officer of the Lead Borrower, Existing Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required (A) appraisals (based on net liquidation value) by law or reasonably requested by a third party appraiser acceptable to the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and of all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction Inventory of the Collateral Agent and Borrowers, the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.results of which are reasonably satisfactory to the
Appears in 1 contract
Sources: Credit Agreement (Hamilton Beach Brands Holding Co)
Conditions of Initial Credit Extension. The obligation of the LC 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 PDFs or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to Agreement, the Administrative Agent, each Lender Guaranty and the Lead BorrowerSecurity and Pledge Agreement executed by each Person a party thereto;
(ii) a Note executed by the Borrowers each Borrower in favor of each Lender requesting a NoteNote with respect to the applicable Facility;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower and each 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 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 Borrower or Guarantor is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower and each Guarantor is duly organized or formed, and that each Loan Party Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion customary opinions of each Drinker B▇▇▇▇▇ & R▇▇▇▇ LLP and, in respect of the Dutch Borrower, B▇▇▇▇ & M▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPAmsterdam N.V., in each case counsel or special counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, dated as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Closing Date;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying that (A) that the conditions specified in clauses (a), (bSection 4.01(c) and (c4.01(d)(ii) of Section 4.02 have been satisfied and (B) each of the Specified Representations and the Specified Purchase Agreement Representations are true and correct in all material respect (or, with respect to representations and warranties modified by materiality standards, in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respect (or, with respect to representations and warranties modified by materiality standards, in all respects) as of such earlier date;
(vii) a solvency certificate substantially in the form of Exhibit G signed by the chief financial officer of the Company;
(viii) the Refinancing shall have been consummated or shall be consummated substantially concurrently with the Closing Date, and the Administrative Agent shall have received customary payoff letters in connection therewith as to the total indebtedness with respect thereto required to be paid (except to the extent outstanding letters of credit are to be continued under the Revolving Credit Facility, cash collateralized or subject to back-to-back letters of credit) (the “Prepayment Amount”) and confirming that when the Prepayment Amount is paid and all commitments thereunder have been terminated and cancelled (which will occur on or prior to the receipt of the Prepayment Amount), all Liens in connection with the Indebtedness subject to the Refinancing shall be terminated and released, in all events in such a manner as the Administrative Agent is reasonably satisfied that on the Closing Date, after giving effect to the Transactions, neither the Company nor any of its Subsidiaries (giving effect to the Closing Date Acquisition) shall have any outstanding Indebtedness other than Indebtedness under the Loan Documents or other Indebtedness not subject to the Refinancing;
(ix) (A) audited consolidated balance sheets of the Company and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Company and its consolidated Subsidiaries for, the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018, (B) audited consolidated balance sheets of the Target and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Target and its consolidated Subsidiaries for, the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018, (C) unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Company and its consolidated Subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of the Company and its consolidated Subsidiaries ended after December 31, 2018 and ended at least 45 days before the Closing Date and (D) unaudited consolidated balance sheet of the Target and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of the Target and its consolidated Subsidiaries ended after December 31, 2018 and ended at least 45 days before the Closing Date;
(x) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Company and its Subsidiaries as of, and for the three-month period ending on, the last day of the most recently completed fiscal quarter ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income);
(xi) consolidated forecasts for the Company and its Subsidiaries (after giving effect to the consummation Transactions) of balance sheets, income statements and cash flow statements on an annual basis for each year during the transactions contemplated under term of this Agreement and on a quarterly basis for the first year after the Closing Date; and
(A) a Request for Credit Extension in accordance with the requirements hereof (including the notice periods set forth in Section 2.02(a) with respect to each Type of Loan being requested on the Closing Date, and with a copy to the L/C Issuer or the applicable Swing Line Lender, if applicable), and (B) a Funding Indemnity Letter with respect to the Euro Term Facility and, as applicable, any other Eurocurrency Rate Loans to be made on the Closing Date.
(b) The Collateral and Guarantee Requirement (other than in accordance with Section 6.19 and Schedule 6.19) shall have been satisfied and (after giving effect to any Liens to be released prior to or contemporaneously with the initial Credit Extension on the Closing Date) the Collateral shall be subject to no Liens other than Permitted Liens; provided that if, notwithstanding the use by the Company and its Restricted Subsidiaries of commercially reasonable efforts to provide and perfect on the Closing Date security interest in assets intended to constitute Collateral such provision and/or perfection of a security interest (other than (i) the execution and delivery by each Loan Documents Party of the documentation required by Section 4.01(a), (ii) the delivery of any certificated Equity Interests of each pledged Subsidiary (with powers executed in blank) pledged or to be pledged pursuant to any Collateral Document, (iii) the delivery of UCC financing statements with respect to each Domestic Obligor (or an authorization permitting the Administrative Agent to file UCC financing statements with respect to each Domestic Obligor), and (iv) the delivery of short-form Intellectual Property Security Agreements with respect to each Domestic Obligor for filing with the United States Patent and Trademark Office or the United States Copyright Office, as applicable (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, such 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 (including but shall be required to be satisfied as promptly as practicable after the Closing Date and in any Loans made event within the period specified therefor in Schedule 6.19 or Letters such later date as the Administrative Agent may reasonably agree).
(c) Since December 31, 2016, there shall not have occurred any event, change, circumstance, occurrence, effect or state of Credit issued hereunder))facts that, (B) that there individually or in the aggregate, has been no event or circumstance since May 2had, 2015, that has had or could reasonably be reasonably expected to have, a Closing Date Material Adverse Effect.
(d) (i) the Administrative Agent shall have received a final, executed copy of the Purchase Agreement and any amendment, modification or waiver thereof since the execution thereof on April 4, 2017, and (ii) the Closing Date Acquisition shall be consummated (including the consummation of the applicable regulatory requirements and receipt of the applicable third party consents, in each case, as required by the Purchase Agreement) simultaneously or substantially concurrently with the closing under the Facilities in accordance with the terms of the Purchase Agreement, after giving effect to any modifications, amendments, consents or waivers, other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the Lenders (in their capacities as such), the Administrative Agent and the Arrangers, either individually or in the aggregate, a Material Adverse Effectwithout the prior written consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned).
(Ce) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party The Administrative Agent and the validity against such Loan Party of Lenders shall have received (i) at least one Business Day before the Closing Date all documentation and other information about the Loan Documents to which it is a party, or (2) Parties and their Subsidiaries that all such consents, licenses and approvals shall have been obtained reasonably requested by the Administrative Agent or the Lenders in writing at least five (5) business days prior to the Closing Date and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, Administrative Agent and the senior credit facilities of Lenders reasonably determine is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the B&N Parties have closed on or substantially simultaneously with PATRIOT Act (provided that such information shall, to the extent requested at least ten (10) Business Days prior to the Closing Date;, have been provided at least five (5) Business Days prior to the Closing Date) and (ii) a certification regarding beneficial ownership required by the Beneficial Ownership Regulation in relation to each applicable Borrower, at least five (5) days prior to the Closing Date, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation as to such Lender.
(viif) evidence that The Administrative Agent shall have received a customary flow of funds statement executed by the Company with respect to all insurance required Credit Extensions and other Transactions to be maintained pursuant to occur on the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory Closing Date in form and substance satisfactory to the Administrative Agent.
(g) All fees required to be paid pursuant to this Agreement or the Fee Letters shall have been paid.
(h) Unless waived by the Administrative Agent, attesting all reasonable out-of-pocket expenses required to the Solvency of the Loan Parties be paid on a consolidated basis as of or before the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, paid (to the reasonable satisfaction extent invoiced at least one (1) business day (or such shorter time as the Company may agree) prior to the Closing Date (provided that any such invoice shall not thereafter preclude a final settling of accounts between the Collateral Agent Company and the ArrangersAdministrative Agent).
(bi) Not less than $100,000,000 in Aggregate Commitments The Closing Date shall have been occurred on or prior to August 30, 2019. WITHOUT LIMITING THE FOREGOING, ON THE CLOSING DATE USAGE OF THE REVOLVING CREDIT FACILITY SHALL BE LIMITED TO $300,000,000 TO FINANCE IN PART THE TRANSACTIONS AND TO ISSUE LETTERS OF CREDIT (OR PERMIT EXISTING LETTERS OF CREDIT TO BE ROLLED INTO THE REVOLVING CREDIT FACILITY). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative Agent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note;
(iii) a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower and the Trust 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 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;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party of the Borrower and the Trust is duly organized or formed, and that each Loan Party of the Borrower and the Trust is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens set forth in favor of the Collateral Agent)Exhibit H;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying and the Trust either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a consolidated basis Material Adverse Effect and (C) a calculation of the Consolidated Leverage Ratio as of the Closing Date after giving effect last day of the fiscal quarter of the Borrower most recently ended prior to the transactions contemplated herebyClosing Date;
(ix) a duly completed Compliance Certificate as of the Security Documentslast day of the fiscal quarter of the Borrower ended on September 30, each duly executed 2012, signed by a Responsible Officer of the applicable Loan Parties;Borrower; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 Any fees required to be paid to the Administrative Agent or any Lender in Aggregate Commitments connection with this Agreement or the Fee Letter on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent 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 as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit and Term Loan Agreement (DCT Industrial Trust Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 originals, telecopies or telecopies “PDFs” (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each Lender:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the Security Instruments, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by each of the Borrowers in favor of each Lender requesting a Notethat has requested Notes at least two (2) Business Days in advance of the Closing Date;
(iii) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries (or other individuals performing similar functions) 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 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 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 formed, and that each of the Loan Party Parties is validly existing, in good standing or the equivalent thereof (to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;organization,
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, Parties including special counsel to the Loan PartiesParties in the Netherlands, Belgium, Luxembourg and Ireland, in each case, addressed to the Administrative Agent and each Lender (and expressly permitting reliance by successors and assigns of the Administrative Agent and each Lender), as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a 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, either individually or in the aggregate, to have a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on April 2, 2011, signed by a Responsible Officer of the Company;
(ix) evidence satisfactory to the Administrative Agent and the Lenders that the amount, terms, types and conditions of all insurance maintained by the Loan Parties are consistent with that required to be maintained pursuant to the Loan Documents and all certificates and endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to naming the Administrative Agent, attesting to the Solvency on behalf of the Loan Parties Secured Parties, as additional insured or lender loss payee, as the case may be, on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Partiesall such property and liability insurance policies;
(x) evidence satisfactory to the Administrative Agent (including customary payoff letters) that all obligations (including all principal, interest and other amounts) under the Existing Loan DocumentsAgreement have been, each duly executed by or concurrently with the applicable Closing Date are being, paid in full and terminated and all Liens securing obligations under the Existing Loan PartiesAgreement have been, or concurrently with the Closing Date are being, released; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 The Administrative Agent shall have received all filings and recordations that are necessary to perfect the security interests of the Administrative Agent, on behalf of the Secured Parties, in Aggregate Commitments the Collateral.
(c) The Administrative Agent shall have received original stock certificates or other certificates, if any, evidencing the Equity Interests pledged pursuant to the Security Instruments, together with an undated transfer power for each such certificate duly executed in blank by the registered owner thereof, for any such Equity Interests that are certificated.
(d) The Administrative Agent shall have received the results of a Lien search (including a search as to judgments and tax matters), in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in assets of the same type as the Collateral of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Liens permitted pursuant to Section 7.01).
(e) Any fees and expenses required to be paid on or before the Closing Date under the Fee Letters and the “Commitment Letter” (as defined in the Fee Letters) or under any Loan Document shall have been paid.
(f) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two (2) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Consolidated Amendment to Loan Documents, and any other Loan Document required to be delivered with respect to the Guarantors, the Collateral or otherwise, in each case sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerSEI;
(ii) a (x) Revolving Note executed by the Borrowers each Borrower in favor of each Revolving Lender requesting a Revolving Note, (x) Term Note executed by each Borrower in favor of each Term Lender requesting a Term Note, and (y) a Swing Line Note executed by each Borrower in favor of Bank of America, as the Swing Line 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 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 party, which such certificates may, to the extent agreed by the Administrative Agent, reference such documents delivered in connection with the Original Closing Date of the Existing Agreement and certifying to their continuing status or is to be a partyany changes thereto;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party, other than any Loan Party set forth on Schedule 4.01(a)(iv), is duly organized or formed, and that each such Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a the favorable written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of each (A) special counsel to SEI and any Loan Party organized under the laws of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPthe United States of America, any state or territory thereof (other than Puerto Rico) or the District of Columbia, (B) special counsel to the Loan PartiesPR Borrowers and any PR Guarantor, and Cravath, Swaine & ▇▇▇▇▇ LLP, (C) special local counsel to one or more of the Loan PartiesParties in each jurisdiction listed on Schedule 4.01(a)(v), in each casecase dated the Closing Date, addressed to the Administrative Agent and each Lender the Lenders and as satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying SEI that (A) that the conditions specified in clauses either (a), (bx) and (c) attaches copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (y) states that no such consents, licenses or approvals are so required, (B) certifies that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (C) certifies 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 (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) includes calculations demonstrating that the Spin-Off shall have occurred, and the senior credit facilities Aggregate Revolving Credit Commitments as of the B&N Parties have closed on or substantially simultaneously with the Closing Date, after giving effect to all transactions to be consummated on or prior to such date, exceeds the Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations by not less than $50,000,000;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer evidence of the Lead Borrowerdelivery of any Uniform Commercial Code financing statements or amendments, satisfactory sufficient in form and substance each case for filing in all places required by applicable United States law to perfect the Liens of the Collateral Agent or the Administrative Agent under the Security Instruments as a first priority Lien (subject to Permitted Liens) as to items of Collateral in which a security interest may be perfected by the filing of financing statements, to the extent deemed necessary or appropriate by the Administrative AgentAgent or the Collateral Agent to maintain the perfection in Collateral existing under the Existing Agreement and related documents, attesting or to the Solvency of perfect a security interest in any new or additional Collateral provided in connection with this Agreement and the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyDocuments;
(ix) such other documents and/or evidence of other actions as may be necessary under applicable United States law to perfect, or maintain the perfection of, the Liens of the Collateral Agent under the Security DocumentsInstruments as a first priority Lien (subject to Permitted Liens) in and to such other Collateral as the Collateral Agent or the Administrative Agent may require, including without limitation:
(A) the delivery by SEI and each Subsidiary owning any Pledged Interests of all stock certificates evidencing Pledged Interests not already in possession of the Collateral Agent, or that are necessary to correct the certificate in the possession of the Collateral Agent evidencing such Pledged Interest (whether the identity of the record owner or issuer, the number or type of shares, or otherwise), accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto; and
(B) to the extent not previously delivered to the Collateral Agent pursuant to the Existing Agreement, the delivery by SEI and each applicable Subsidiary of certificates of the applicable Loan PartiesRegistrar of each partnership or limited liability company Domestic Subsidiary evidencing the due registration on the registration books of such Person of the Lien in favor of the Collateral Agent conferred under the Security Instruments;
(x) all Uniform Commercial Code search results showing only Permitted Liens and such other Loan Documents, each duly executed by Liens as are acceptable to the applicable Loan PartiesLenders; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date (provided that after the Closing Date, the Borrowers acknowledge that there will be a final settling of accounts between the Borrowers and the Administrative 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 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender Bank to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s Unless waived by the Bank, the Bank's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentBank and its legal counsel:
(i) executed counterparts of this Agreement, the Security Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender Bank and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting the Bank in a Noteprincipal amount equal to the Bank's Commitment;
(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 Bank may require evidencing (A) to establish the authority identities of each Loan Party to enter into this Agreement and verify 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 Organization Documents and such other documents and certifications evidence as the Administrative Agent Bank may reasonably require to evidence verify 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 each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant qualified to the engage in business, including certified copies of each Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Party's Organization Documents, each duly executed by the applicable Loan Partiescertificates of good standing and/or qualification to engage in business;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers 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 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 Organization Documents and such other documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is Guarantor is, validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel Parties acceptable to the Loan Parties, in each caseAgent, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect in form and substance satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso 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, and (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 7.12 as of the last day of the fiscal quarter of Borrower ended March 30, 2013;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiiix) a certificate from evidence that the chief financial officer commitments under the Credit Agreement dated as of the Lead June 13, 2011, as amended or modified, among Borrower, satisfactory in form JPMorgan Chase Bank, N.A., as agent and substance to a syndicate of lenders (the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of “Existing Credit Agreement”) have been or concurrently with the Closing Date after giving effect are being terminated, and that all loans and obligations thereunder have been paid in full (except to the transactions contemplated hereby;
(ixextent being so repaid with the initial Loans) the Security Documents, each duly executed by the applicable Loan Parties;and any and all liens thereunder shall have been terminated; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as Agent or the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and 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 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit H (together with each other supplement or joinder delivered pursuant to Section 6.12, in each case as amended, the “Pledge Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank, and
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement;
(iv) 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 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;
(ivv) copies of each Loan Party’s 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 formed, and that the Borrower and each Loan Party Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or formation and in the conduct State of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;California.
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis Material Adverse Effect; and (C) a calculation of the Lease Adjusted Leverage Ratio as of the Closing Date after giving effect to the transactions contemplated herebyDecember 30, 2007;
(ix) evidence that the Security Documents, each duly executed by Existing Credit Agreement has been or concurrently with the applicable Loan Parties;Closing Date is being terminated; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before May 31, 2008. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 will be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers 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 the Company 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 it is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formed, and that each Loan Party the Company is validly existing, existing and in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectstanding;
(v) a favorable opinion opinions of each the executive vice president, general counsel and secretary of the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, special outside counsel to the Loan Parties, in each caseCompany, addressed to the Administrative Agent and each Lender and as Lender, with respect to such matters concerning the Loan Parties and Company, the Loan Documents and such other matters as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)shall request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender Lenders to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, 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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement and the other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrowers;
(ii) a Note executed by the Borrowers in favor of each Lender requesting that requests a Note;
(iii) amendments to, and/or amendments and restatements of, such other Loan Documents as Administrative Agent may reasonably require to effect the terms of this Agreement, including, without limitation, if the Borrower has adopted or has any trademarks that are registered with the United States Patent and Trademark Office (“USPTO”) and are not covered by a prior filing of Administrative Agent’s security interest therein with the USPTO, a supplemental grant with respect to such trademarks;
(iv) 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 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 Borrower is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each Loan Party Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion or opinions of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each caseBorrowers, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit H and such other matters concerning the Loan Parties Borrowers and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of the Lead Loan Documents to which it is a party, which 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 of each Borrower signed by a Responsible Officer certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(viiix) evidence that all Insurance Requirements have been met and that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are thereto is in effect;; and
(viiix) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from Lenders other than paid.
(c) The Borrowers shall have paid all Attorney Costs of the Lead Lenders executing this AgreementAdministrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty unless otherwise specified, 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 the Administrative AgentCo-Lead Arrangers and their legal counsel:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative AgentCo-Lead Arrangers, each Lender and the Lead Borrower;.
(ii) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term 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 Agreement, the other Loan Documents, the Transaction and the Transaction Documents to which such Loan Party is a party or is to be a party;.
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;.
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇, counsel to the Loan Parties, addressed to the Co-Lead Arrangers and Cravatheach Lender, Swaine & ▇▇▇▇▇ LLP, counsel as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties Documents, the Transaction and the Loan Transaction Documents as the Administrative Agent Co-Lead Arrangers or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);request.
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;so required.
(vii) evidence a certificate signed by a Responsible Officer of the Borrower certifying (A) that all insurance required 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 be maintained pursuant have, either individually or in the aggregate, a Material Adverse Effect, and (C) a calculation of the Consolidated Total 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 Closing Date both on an actual basis as of the Collateral Agent required under date of determination and on a pro forma basis (as it pertains to Indebtedness incurred on the Loan Documents have been obtained and are in effect;Closing Date).
(viii) A security agreement in substantially the form of Exhibit H (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, supplemented or otherwise modified from time to time, the "Security Agreement"), duly executed by each Loan Party (other than Allergan), together with:
(A) instruments evidencing the Pledged Debt referred to therein indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Co-Lead Arrangers may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described in the Collateral Documents,
(C) completed requests for information, dated on or before the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party or predecessor as debtor, together with copies of such financing statements,
(D) evidence of the completion of all other recordings and filings of or with respect to the Collateral Documents that the Co-Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) copies of the Assigned Agreements referred to in the Security Agreement, together with, if reasonably requested by the Administrative Agent for a Material Contract, a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(F) the Pledged Account Letters referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and
(G) evidence that all other action that the Co-Lead Arrangers may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and, if reasonably requested by the Co-Lead Arrangers, landlords' and bailees' waiver and consent agreements).
(ix) A guaranty in substantially the form of Exhibit F (together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12, in each case as amended, supplemented or otherwise modified from time to time, the "Guaranty"), duly executed by each Guarantor.
(x) A guaranty in substantially the form of Exhibit J (as amended, supplemented or otherwise modified from time to time, the "Allergan Guaranty"), duly executed by Allergan, and a pledge agreement in substantially the form of Exhibit K (as amended, supplemented or otherwise modified from time to time, the "Allergan Pledge Agreement"), duly executed by Allergan.
(xi) A copy of a certificate of the Secretary of State of the jurisdiction of organization of each Loan Party, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Loan Party's charter on file in such Secretary's office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(xii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State's certificate referred to in clause (xi) above, (B) a true and correct copy of the bylaws or other organizational documents of such Loan Party as in effect on the date on which the resolutions referred to in clause (iii) above were adopted and on the Closing Date, (C) the due organization and good standing or valid existence of such Loan Party as an organization organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (E) the absence of any event occurring and continuing, or resulting from the chief financial officer initial Credit Extension, that constitutes a Default.
(xiii) Certified copies of each of the Lead BorrowerRelated Documents, satisfactory duly executed by the parties thereto and in form and substance reasonably satisfactory to the Administrative AgentCo-Lead Arrangers, accompanied by due certifications that none of such documents, have been amended or waived as of the Closing Date (unless consented to in writing by the Co-Lead Arrangers), together with all agreements, instruments and other documents delivered in connection therewith as the Co-Lead Arrangers shall request.
(xiv) Certificates, in form and substance reasonably satisfactory to the Co-Lead Arrangers, attesting to the Solvency of the each Loan Parties on a consolidated basis as of the Closing Date Party before and after giving effect to the transactions contemplated hereby;Transaction, from its Chief Financial Officer.
(ixxv) A Loan Notice relating to the Security Documents, each duly executed by the applicable Loan Parties;initial Credit Extension.
(xxvi) all other Loan DocumentsA favorable opinion of (A) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, each duly executed by local counsel to the applicable Loan Parties; and
Lenders in Ireland, and (xiB) all documents and instrumentsYuwa Partners, including Uniform Commercial Code financing statements, required by law or reasonably requested by local counsel to the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedLenders in Japan, in each case, in form and substance satisfactory to the reasonable satisfaction Co-Lead Arrangers.
(xvii) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Collateral Agent Borrower, delivered in connection with the Spinoff which opinion is either (A) addressed to the Agents and the ArrangersLenders and expressly states that the Agents and the Lenders may rely on such opinion or (B) accompanied by a reliance letter from such counsel addressed to the Agents and the Lenders that expressly states that the Agents and the Lenders may rely on such opinion.
(b) Not less than $100,000,000 in Aggregate Commitments A copy of the fairness opinion issued to Allergan or its Board of Directors and related to the Spinoff.
(c) Any fees required to be paid on or before the Closing Date shall have been received from Lenders paid.
(d) Unless deferred by the Co-Lead Arrangers, the Borrower shall have paid all Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Co-Lead Arrangers).
(e) The Co-Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of the Borrower and each of its Subsidiaries the Equity Interests in which are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in the Borrower and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.
(f) The Co-Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions reasonably satisfactory to the Co-Lead Lenders executing Arrangers.
(g) Both before and after giving effect to the Transaction, there shall have occurred no Material Adverse Effect.
(h) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any Governmental Authority that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction.
(i) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Required Lenders) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no Law shall be applicable in the reasonable judgment of the Required Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(j) The Borrower shall have received at least $200,000,000 in aggregate principal amount with respect to the Senior Subordinated Debt Financing pursuant to the Senior Subordinated Debt Documents, without any amendment or waiver thereof unless consented to in writing by the Co-Lead Arrangers.
(k) After giving effect to the Spinoff and to the initial Credit Extension and the application of the proceeds of such Credit Extension and of the Senior Subordinated Debt Documents, the Borrower and its Subsidiaries will not have any funded debt other than pursuant to this AgreementAgreement and the Senior Subordinated Debt Documents.
(l) The Business shall have a Consolidated EBITDA for the last twelve months ending March 31, 2002 of at least $72,000,000, as certified by the Borrower and Allergan.
Appears in 1 contract
Sources: Credit Agreement (Amo Holdings LLC)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower (it being understood and agreed that the Subsidiary Guaranty shall be executed and delivered by each Domestic Subsidiary that is not otherwise an Excluded Subsidiary as of the Closing Date);
(ii) a Note Notes executed by the Borrowers 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 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 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 formed, and that each Loan Party is validly existing, in good standing and and, solely in the case of the Borrower, qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ (A) DLA Piper LLP, special New York counsel to the Loan Parties, and Cravath, Swaine & (B) ▇▇▇▇▇▇ LLP▇▇▇▇▇▇▇▇▇▇, counsel to General Counsel of the Loan PartiesBorrower, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such those matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) 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 and (B) that there have not has been any material change 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 capital structure aggregate, a Material Adverse Effect;
(viii) a pro forma consolidated balance sheet as of March 31, 2010 and capitalization a pro forma statement of income for the Lead nine month period ended March 31, 2010, in each case for the Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies giving effect to all elements of the Spin-Off Agreements are attached thereto and (Facquisition(s) that previously disclosed to the Spin-Off shall have occurred, Arranger and the senior credit facilities Lenders which either have been consummated since June 2, 2010 or are scheduled to be consummated within a reasonable period of the B&N Parties have closed on or substantially simultaneously with time following the Closing Date;
(viiix) evidence that all insurance a copy of the notice the Borrower is required to be maintained deliver the Holders (as such term is defined in the Note Purchase Agreement) pursuant to Section 6.14, which notice shall (A) inform the Loan Documents and all endorsements in favor Holders of the Collateral Agent required Borrower’s determination that a change in generally accepted accounting principles has occurred, (B) request an amendment to the definition of “Consolidated EBITDA” contained in the Note Purchase Agreement such that the revised definition therein will be substantively the same as the definition of “Consolidated EBITDA” contained in this Agreement and (C) until such an amendment is agreed to, suspend the applicability of such change in generally accepted accounting principles to the Borrower’s financial covenant calculations under the Loan Documents have been obtained and are in effect;
Note Purchase Agreement (viii) a certificate from such notice, the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;“NPA Notice”).
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all other Loan Documents, each duly executed by the applicable Loan Parties; and
Liens (xiif any) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created securing obligations under the Loan Documents and all such documents and instruments shall Existing Credit Agreement have been so filed, registered or recorded, in each case, to concurrently with the reasonable satisfaction of the Collateral Agent and the ArrangersClosing Date are being released.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in writing of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement Agreement, the Guaranty and the Pledge Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) stock certificates, stock powers or similar documents or instruments as may be required pursuant to the terms of the Pledge Agreement;
(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 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyMaterial Adverse Effect;
(ix) a duly completed Compliance Certificate as of the Security Documentslast day of the fiscal quarter of the Borrower ended on July 31, each duly executed 2011, signed by a Responsible Officer of the applicable Loan PartiesBorrower;
(x) evidence that the Borrower’s existing line of credit with Sovereign Bank has been or concurrently with the Closing Date is being terminated and all other Loan DocumentsLiens securing obligations thereunder, each duly executed by if any, have been or concurrently with the applicable Loan PartiesClosing Date are being released; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Analogic Corp)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) Notes, if requested by a Note Lender at least three Business Days prior to the Closing Date, executed by the Borrowers each Borrower in favor of each Lender requesting a Notesuch 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 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 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 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 formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in each the jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of (A) Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, (B) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Loan PartiesCompany, ▇▇▇▇ and Cravath, Swaine & LCHI and (C) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special Nevada counsel to the Loan PartiesLUSA, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2the January 31, 2015, 2016 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;72 Lululemon Credit Agreement
(vii) evidence that all insurance required such other information as has been reasonably requested in writing at least 10 days prior to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by Administrative Agent or the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, Lenders that they reasonably determine is required by law or reasonably requested by the Collateral Agent regulatory authorities under applicable “know your customer” and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents anti-money laundering rules and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersregulations.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to or on the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 reasonably satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender and L/C Issuer 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as 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 the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ (i) Blank Rome LLP, U.S. counsel to the Loan Parties, and Cravath, Swaine (ii) A▇▇▇▇ & M▇▇▇▇▇ LLP, Honduras counsel to the Loan PartiesAgent, in each case, addressed to the Administrative Agent and each Lender and Lenders, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (bSections 4.01 and 4.02(b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the most recent audited financial statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties, taken as a whole, as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from W▇▇▇▇ Fargo Capital Finance, LLC, agent for the chief financial officer of lenders under the Lead Borrower, Existing Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement have been or concurrently with the Closing Date after giving effect to are being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the 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 reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xii) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been been, or concurrently with the Closing Date are, so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Agent, (B) DDA Notifications and Blocked Account Agreements required pursuant to Section hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, (D) Collateral Access Agreements as required by the Agent for locations holding Collateral of a value in excess of $100,000, and (E) Customs Broker/Carrier Agreement as required by Agent for each of customs brokers, freight forwarders, consolidators and/or carriers used by the ArrangersLoan Parties; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent or its counsel reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, and (ii) (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 3,500,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the period no later than the end of the previous week, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that there has been no Material Adverse Effect since the date of the most recent audited financial statements.
(e) The Agent shall have received and approved the Borrowers’ Business Plan.
(f) The Agent shall have received and be reasonably satisfied with all background investigations reports received with respect to the owners of the Equity Interests of the Borrowers and the management of the Loan Parties.
(g) There shall not be pending any litigation or other proceeding, the result of which, either individually or in Aggregate Commitments the aggregate, could reasonably be expected to have a Material Adverse Effect.
(h) There shall not have occurred any default of any Material Contract of any Loan Party.
(i) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(j) All fees and expenses required to be paid to the Agent on or before the Closing Date, including fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Closing Date, shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Agent and the Lenders shall have received from 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 USA PATRIOT Act.
(l) The Agent and the Lenders other than shall have received audited financial statements of the Lead Lenders executing Borrower and its Subsidiaries for the fiscal year ended December 31, 2012 and the fiscal year ended December 31, 2011.
(m) Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this AgreementSection , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or reasonably satisfactory to a Lender unless the 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 LC 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 Agent shall have received all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 acceptable to the Administrative Agent:
(i) executed counterparts of (1) this Agreement sufficient in number for distribution to executed by the Borrower, the Administrative Agent, Agent and each Lender and (2) the Lead BorrowerGuaranty Agreement executed by the parties thereto;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates certificate of resolutions or other action, incumbency certificates certificate and/or other certificates of Responsible Officers of the Borrower (or its General Partner) and each Subsidiary party to a Loan Party Document 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 Person is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower and each Subsidiary party to a Loan Party Document is duly organized or formed, and that each Loan Party such Person is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower and each Subsidiary party to a Loan PartiesDocument, in each caseform and substance satisfactory to Administrative Agent, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vi) a certificate of a Responsible Officer of the Borrower (or its General Partner) and each Subsidiary party to a Loan Document either (A) certifying that all consents, licenses and approvals (including all equityholder and board of director (or comparable entity management body) authorizations) required in connection with the execution, delivery and performance by such Person and the validity against such Person of the Loan Documents to which it is a party, and such consents, licenses and approvals are 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 or its General Partner certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event does not exist any pending or circumstance since May 2threatened litigation, 2015proceeding under any Debtor Relief Law, or other proceeding in respect of the initial Credit Extension or 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer evidence satisfactory to it that (A) all Loans (as defined in each Existing Credit Agreement) of the Lead BorrowerLenders (as defined in each Existing Credit Agreement) shall have been or shall concurrently be repaid in full, satisfactory in form together with any accrued interest thereon and substance any accrued fees payable to such Lenders under each Existing Credit Agreement to the Administrative AgentClosing Date, attesting to and (B) the Solvency commitments under each Existing Credit Agreement of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebysuch Lenders shall have been or shall concurrently be terminated;
(ix) the Security Documents, each duly executed by the applicable Loan PartiesInitial Financial Statements;
(x) all other fully executed counterparts of the Five-Year Credit Agreement and the Five-Year Credit Agreement Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction fully executed counterparts of the Collateral Agent and the ArrangersETP Consolidation Agreements.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid by the Borrower and its Subsidiaries on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least two (2) Business Days (or such later date reasonably acceptable to the Borrower) prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) At least three (3) Business Days prior to the Closing Date, the Borrower and each Subsidiary party to a Loan Document shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent or any other Lender at least five (5) Business Days prior to the Closing Date in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(e) Since December 31, 2016, no event or circumstance has occurred that has had a Material Adverse Effect. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has executed and delivered 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Energy Transfer Partners, L.P.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 and the Arrangers 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 Organization Documents and such other documents and certifications as the Administrative Agent and the Arrangers 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 each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, Parties and Cravath, Swaine & ▇▇▇▇▇ LLP, (ii) such local counsel to the Loan Parties, in each case, case addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent and the Arrangers may reasonably request (including, without limitation, with respect to enforceability, due authorization and authorization, perfection of the Liens in favor of the Collateral AgentAgent and absence of conflicts with specified material agreements);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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, Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and and, except for the endorsements specified on Schedule 4.01(a) hereto which shall be delivered no later than 15 days after the Closing Date, all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from (A) Bank of America, N.A., as agent for the lenders under the Existing Credit Agreement and (B) Bank of America. N.A., as agents for the lenders under the Existing BCNB Credit Agreement, in each case satisfactory in form and substance to the Administrative Agent evidencing that each such credit facility has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;
(ix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated Consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixx) except for the Securities Account Control Agreements specified on Schedule 4.01(b) hereto, which shall be duly executed and delivered no later than 15 days after the Closing Date, the Security DocumentsDocuments (other than the Mortgages), each duly executed by the applicable Loan PartiesParties (it being understood that no Mortgages will be executed and delivered as of the Closing Date);
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixii) results of searches or other evidence reasonably satisfactory to the Collateral Agent and the Arrangers (in each case dated as of a date reasonably satisfactory to the Collateral Agent and the Arrangers) 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 and the Arrangers are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent and the Arrangers for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers, (B) the Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts;
(xiv) certified copies of each of the BNCB Acquisition Documents, including the Seller Notes, as amended and in effect on the Closing Date, duly executed by the parties thereto and in form and substance substantially the same as the form and substance of such agreements and documents dated August __, 2009 delivered to and approved by the Administrative Agent, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request; and
(xv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not The BNCB Acquisition shall have been consummated in accordance with the BNCB Acquisition Documents and in compliance with all applicable Laws and regulatory rules of any Governmental Authority.
(c) After giving effect to (i) the consummation of the BNCB Acquisition, (ii) the first funding under the Loans, (iii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iv) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement400,000,000.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent unless otherwise consented to or waived by the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of each of the other Loan Documents;
(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 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party of the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇, Cutler, Pickering, ▇▇▇▇ and ▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, dated as of the Closing Date in form and as substance satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;Material Adverse Effect; and
(ix) such other assurances, certificates, documents, consents or opinions as the Security Documents, each duly executed by Administrative Agent or the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before July 31, 2015. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed counterparts of each Guaranty from each Material Subsidiary sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iii) the Security Agreement executed by the Borrowers Borrower, each Material Subsidiary and the Administrative Agent;
(iv) executed counterparts of the Intercreditor Agreement executed by each party thereto;
(v) Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iiivi) 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 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;
(ivvii) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(viix) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurred, and been satisfied; (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Total Leverage Ratio and Consolidated Senior Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viixi) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on December 31, 2006, signed by a Responsible Officer of the Borrower;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixiii) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of Swing Line Lender or the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesRequired Lenders reasonably may require; and
(xixiv) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction an executed copy of the Collateral Agent and Prudential Agreement as defined in the ArrangersIntercreditor Agreement.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Administrative Agent and its counsel shall be satisfied that the security interests described in the Security Agreement have been perfected and such security interests constitute first liens on the Collateral in favor of the Administrative Agent for the benefit of the Lenders other than subject to the Lead Lenders executing this rights of parties to the Intercreditor Agreement.
(e) The Closing Date shall have occurred on or before June 1, 2007. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 (Northwest Pipe Co)
Conditions of Initial Credit Extension. The obligation of the LC 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, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (oror such other date, in the case of certificates of governmental officialsif applicable, a recent date before the Closing Date) and each in form and substance satisfactory to as the Administrative Agent:Agent may otherwise agree):
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note executed by 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 Organization Documents and a certificate of good standing (where applicable, or such other documents and certifications as customary functionally equivalent certificates or abstracts, to the Administrative Agent may reasonably require to evidence that each extent available in the applicable jurisdiction) of such Loan Party is duly organized or formedParty’s jurisdiction of organization, and that each Loan Party is validly existingcertificates of foreign qualification (where applicable, or such other customary functionally equivalent certificates or abstracts, to the extent available in good standing and qualified to engage in business in the applicable jurisdiction) from each jurisdiction where its the ownership, lease or operation of properties or the conduct of its the business of such Loan Party requires such qualification, except to the extent that failure to do so could qualify would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (A) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, (B) ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇, P.C., special Missouri counsel to the Loan Parties, (C) Mariscal, Weeks, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇▇▇▇▇, P.A., special Arizona counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, (D) local counsel to the Loan PartiesParties in each jurisdiction where Eligible Real Estate is located on the Closing Date, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to such customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) have been satisfied, and (cB) attesting to the Solvency of Section 4.02 have been satisfied (the Loan Parties as of the Closing Date after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datehereby;
(vii) Intentionally Omitted;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a certificate payoff letter from the chief financial officer of agents and/or redemption notice to the Lead Borrowernoteholders, as applicable, under the Existing Credit Agreements reasonably satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of Agent evidencing that such Existing Credit Agreements have been or concurrently with the Closing Date after giving effect are being terminated, all obligations thereunder are being paid in full, all Liens (if any) securing obligations under such Existing Credit Agreements have been or concurrently with the Closing Date are being released, and all right, title and interest in the Real Estate and other property subject to the transactions contemplated herebySecond Amended and Restated Master Lease described in clause (e) of the definition of “Existing Credit Agreements” has been or concurrently with the Closing Date are being transferred to a Loan Party;
(ixx) the Security DocumentsDocuments set forth on Schedule 4.01(a)(x) hereto and certificates evidencing any stock being pledged under the Security Agreement on the Closing Date, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xxi) all other Loan DocumentsDocuments and other agreements and items set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties; and;
(xiA) a customary commercial finance examination with respect to the relevant collateral to be included in the Borrowing Base on the Closing Date and the relevant accounting systems, policies and procedures of the Lead Borrower and its Subsidiaries and CSK and its Subsidiaries by Spain, Price, Reader & ▇▇▇▇▇▇▇▇, P.C., and (B) customary appraisals of 572 parcels of Real Estate owned in fee simple by the Lead Borrower and its Subsidiaries and CSK and its Subsidiaries and customary appraisals establishing the Appraised Value of all documents of the inventory of the Lead Borrower and instrumentsits Subsidiaries and CSK and its Subsidiaries, including in each case by ▇▇▇▇▇▇▇ & Wakefield, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Asset Advisors, LLC, respectively;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) duly authorized Uniform Commercial Code financing statementsstatements and a “short-form” intellectual property security agreement, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments financing statements shall have been so filed, registered concurrently submitted for filing or recorded, in each case, recording to the reasonable satisfaction of the Collateral Agent, and (B) the Credit Card Notifications and Blocked Account Agreements required on or prior to the Closing Date pursuant to Section 6.13 hereof; and
(xv) evidence that all other actions that the Collateral Agent and may deem necessary in order to create valid Liens on the Arrangersproperty described in the Mortgages have been taken.
(b) Not After giving effect to (i) the first funding under the Loans and (ii) all Letters of Credit (including the Existing Letters of Credit) to be issued on the Closing Date, Availability shall be not less than $100,000,000 in Aggregate Commitments 250,000,000.
(c) The Administrative Agent shall have been received from Lenders a Borrowing Base Certificate dated the Closing Date, relating to the month ended on May 31, 2008 for the Lead Borrower and its Subsidiaries (other than CSK and its Subsidiaries) and June 3, 2008 for CSK and its Subsidiaries, and executed by a Responsible Officer of the Lead Lenders executing this AgreementBorrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender and the L/C Issuer to make its initial Credit Extension hereunder is subject to satisfaction (or waiver by each such Lender and the L/C Issuer) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement Agreement, the Guaranty, each Security Instrument, and all other Loan Documents required by the Administrative Agent, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers 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 the Loan Party Parties 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 any Loan Party is a party or is to be a party;
(iv) copies certified Organization Documents of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since March 25, 2011, that has had or could be reasonably expected to have, either individually or in the senior credit facilities aggregate, a Material Adverse Effect;
(viii) a certificate signed by a Responsible Officer of Loan Parties certifying that the Loan Parties, on a consolidated basis, are Solvent, after giving effect to this Agreement, any Indebtedness incurred in connection herewith and the application of the B&N Parties have closed proceeds of Loans to be borrowed on or substantially simultaneously with the Closing Date;
(viiix) duly executed copies of payoff letters, including, without limitation, with respect to the Existing Loan Documents, and duly executed Lien releases with respect to any Liens which are not Permitted Liens;
(x) Uniform Commercial Code search results showing only Permitted Liens and those Liens as are acceptable to the Administrative Agent;
(xi) Uniform Commercial Code financing statements (or continuations thereof) 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 (subject only to Permitted Liens) 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 necessary under applicable Law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require;
(xii) original certificates evidencing all of the Equity Interests of each Domestic Subsidiary of Borrower that has issued certificated Equity Interests and 65% of the equity interests of each direct Foreign Subsidiary of Borrower, together with undated stock (or equivalent) powers executed in blank for each such certificate;
(xiii) all filings, recordations and searches necessary or required by the Administrative Agent in connection with the liens and security interests in the Collateral shall have been duly made;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
; and endorsements naming the Administrative Agent (viii) a certificate from the chief financial officer on behalf of the Lead BorrowerLenders and the other Secured Parties) as an additional insured and loss payee, satisfactory in form and substance as the case may be, on all such insurance policies maintained with respect to the Administrative Agent, attesting to the Solvency properties of Borrower constituting part of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesCollateral; and
(xixv) all documents a lien waiver and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, consent from Borrower’s landlord with respect to the reasonable satisfaction of the Collateral Agent and the Arrangersfollowing location: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) Not less than $100,000,000 Administrative Agent and the Lenders shall have completed their due diligence, the results of which shall be satisfactory to Administrative Agent and the Lenders.
(c) Administrative Agent and the Lenders shall have reviewed the Interim Financial Statements, which shall be in Aggregate Commitments form and substance satisfactory to Administrative Agent and the Lenders;
(d) There shall exist no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any of the Loan Parties or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or any of the transactions contemplated hereby, or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(e) All fees required to be paid on or before the Closing Date shall have been paid; and
(f) Unless waived by the Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (RealD Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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, PDFs or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 any such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, in each case as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Borrower, certifying that (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 such Loan Party Party, and the validity against such Loan Party Party, of the Loan Documents to which it is a party, or except for (21) that all such consents, licenses and approvals have been obtained and by the Loan Parties prior to the Closing Date, each of which are in full force and effecteffect as of the Closing Date, or (2) those the failure of which to obtain, individually or in the aggregate, could not have, and could not reasonably be expected to have, a Material Adverse Effect, and (D) there have not been any material change in the capital structure and capitalization as of the Lead Borrower and its Subsidiaries from Closing Date after giving effect to the Initial Cap Tabletransactions contemplated hereby, (E) that executed copies of the Spin-Off Agreements Loan Parties on a Consolidated basis are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateSolvent;
(vii) a Borrowing Base Certificate dated the Closing Date, relating to the month ended on September 5, 2009, and executed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a certificate payoff letter from the chief financial officer lenders or the agent for the lenders under each of the Lead BorrowerExisting Credit Agreements evidencing that, satisfactory in form and substance to upon the Administrative Agent, attesting to the Solvency making of the Loan Parties initial Credit Extensions on a consolidated basis as of the Closing Date after giving effect to and the transactions contemplated herebyapplication of such funds in accordance with such payoff letter, all obligations under each of the Existing Credit Agreements will have been paid in full and all commitments thereunder will have terminated, and confirming that all Liens securing obligations under each of the Existing Credit Agreements will be released upon payment in full of the obligations under each of the Existing Credit Agreements, which payment in full shall occur contemporaneously with the initial funding hereunder;
(ixx) the Security DocumentsDocuments (other than the Lancaster Mortgage) and copies of certificates evidencing any stock being pledged thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xxi) the Intercreditor Agreement, duly executed by each of the parties thereto;
(xii) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xiii) certified copies of the Senior Notes Documents, duly executed by the parties thereto, together with such other agreements, instruments and documents delivered in connection therewith as the Administrative Agent shall reasonably request;
(xiv) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory and Prescription Lists of the Borrowers, (B) a written report regarding the results of a commercial finance examination of the Loan Parties, and (C) other due diligence materials (including, without limitation, with respect to the Loan Parties’ and their Affiliates’ organizational structure) reasonably requested by the Administrative Agent;
(xv) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xixvi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law Law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent (other than the Lancaster Mortgage, which shall be filed, registered or recorded not later than sixty (60) days after the Closing Date) and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 25,000,000.
(c) There shall not have occurred since June 30, 2009 any event or condition that has had or could be reasonably expected to have, either individually or in Aggregate Commitments the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received the Audited Financial Statements.
(e) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(f) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(g) The Borrowers shall have received gross proceeds from the issuance and sale by the Borrowers of the Senior Notes in an amount not less than $240,000,000.
(h) There shall be no Indebtedness of the Loan Parties outstanding immediately after the Closing Date other than the Obligations and the Indebtedness arising under the Senior Notes Documents, except as permitted pursuant to Section 7.02.
(i) All fees required to be paid 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 to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and BAS to the extent invoiced at least three (3) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(k) The Administrative Agent 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 USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).
(l) No material changes in governmental regulations or policies materially adversely affecting any Lender’s ability to make loans or enter into credit facilities of the type contemplated herein shall have occurred prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Tops PT, LLC)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer and each Lender to make its initial Credit Extension hereunder this Agreement 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of ▇Bass, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLPPLC, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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) to the Solvency of the Loan Parties as of the Third Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) ; evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) ; the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xvii) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xiviii) an updated commercial finance exam, the results of which are satisfactory to the Agent (which commercial finance exam will not be counted toward such commercial finance exam limits in Section 6.10(b));
(ix) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the 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 or subordination agreements satisfactory to the Agent are being tendered concurrently herewith or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained; and such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may require.
(b) Not less After giving effect to (i) any Loans outstanding hereunder, (ii) any charges to the Loan Account made in connection herewith and (iii) all Existing Letters of Credit and any other Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be greater than $100,000,000 25,000,000 (calculated without giving effect to clause (a) of the Loan Cap).
(c) The Agent shall have received a Borrowing Base Certificate dated the Third Restatement Date, relating to the period ended on February 25, 2023, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Agent and the Lenders shall have received and be satisfied with (i) updated projections through the Loan Parties’ Fiscal Year ending February 3, 2024, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(i) All fees required to be paid to the Agent on or before the Third Restatement Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Third Restatement Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Third Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Third Restatement Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(k) The Agent and the Lenders shall have received all documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least ten (10) days prior to the Third Restatement Date. At least five (5) days prior to the Third Restatement Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Third Restatement Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Third Restatement Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Kirkland's, Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender Lender, including without limitation, the UK Lender, to make its initial Credit Extension hereunder execute this Agreement 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement the Loan Documents as provided below, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower and confirmation of certain of the Loan Documents;
(ii) a second amended and restated Note executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote and a Confirmation of Promissory 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 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 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 formed, and that each Loan Party of the Borrower and each of its Subsidiaries is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, in form and as substance reasonably satisfactory to the Administrative Agent addressing such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 4695641V7 approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying
(E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since December 21, 2005 that has had or could be reasonably expected to have, either individually or in the senior credit facilities aggregate, a Material Adverse Effect; and (C) a calculation of the B&N Parties have closed on or substantially simultaneously with Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viiviii) Reserved;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;; and
(viiix) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of UK Lender or the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative 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 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed 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 LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement Agreement, all Collateral Documents and each Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Guaranty duly executed by each Guarantor;
(A) a Security Agreement, duly executed by Borrower and each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPthe Guarantors, counsel together with any other supplemental agreement to be executed and delivered by the terms of the Security Agreement, (B) certificates evidencing all of the outstanding shares of capital stock or other Equity Interests (to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, extent evidenced by certificates) in each caseof the Subsidiaries and stock powers or other instruments of transfer, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitationendorsed in blank, with respect to enforceabilitysuch certificates, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 any other documents or approvals are required in connection with instruments reasonably requested by the execution, delivery and performance by such Loan Party and Agent to create or perfect the validity against such Loan Party of Liens intended to be created under 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateSecurity Agreement;
(vii) Certified results of UCC searches of all applicable UCC filing offices reflecting that there are no effective financing statements currently on file in such offices naming Borrower or any Subsidiary as debtor, other than financing statements relating to Liens permitted to exist under the terms of Section 7.01;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) , including without limitation a certificate from of Borrower's insurance broker summarizing the chief financial officer of the Lead Borrower, satisfactory in form insurance coverage maintained by Borrower and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents its Subsidiaries and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.showing compliance with Section
Appears in 1 contract
Sources: Credit Agreement (North American Galvanizing & Coatings Inc)
Conditions of Initial Credit Extension. The obligation of the LC 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 U.S. Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 U.S. Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Pledge Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerGuaranties;
(ii) a Note Notes executed by 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 Agents 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 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 Organization Documents and such other documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing standing, as applicable in their respective jurisdictions of formation, and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) such executed documents as the U.S. Administrative Agent may require to perfect the Lenders' first priority security interest in the Collateral;
(vi) evidence that the U.S. Administrative Agent, on behalf of the Lenders, shall have a perfected, first priority interest in the Collateral, subject to the Liens set forth in Schedule 7.01;
(vii) favorable opinion of each opinions of ▇▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇▇▇ LLPand ▇▇▇▇▇▇, counsel counsels to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent Agents and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(viviii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents, 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;
(ix) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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) either that (1) there is no consentsaction, licenses suit, investigation or approvals are required in connection with proceeding pending or, to the execution, delivery and performance by such Loan Party and the validity against such Loan Party knowledge of the Loan Documents Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateMaterial Adverse Effect;
(viix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor calculations certified by a Responsible Officer of the Collateral Agent required under Company demonstrating compliance with the Loan Documents have been obtained and are financial covenants set forth in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties Section 7.11 on a consolidated basis as of the Closing Date Pro Forma Basis after giving effect to the transactions contemplated herebyMeridian Acquisition;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 originals, telecopies or telecopies “PDFs” (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each Lender:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the applicable Security Instruments, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Company and the Lead Foreign Borrower;
(ii) a Note Notes executed by each of the Borrowers in favor of each Lender requesting a Notethat has requested Notes;
(iii) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries (or other individuals performing similar functions) 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 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 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 formed, and that each of the Loan Party Parties is validly existing, in good standing or the equivalent thereof (to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, Parties including special counsel to the Loan PartiesForeign Borrower in Luxembourg, special counsel to the Swiss Pledgor in Switzerland, and special counsel to the Foreign Guarantor in Poland, in each case, addressed to the Administrative Agent and each Lender (and expressly permitting reliance by successors and assigns of the Administrative Agent and each Lender), as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate for each Company and the Foreign Borrower, as applicable, signed by a Responsible Officer thereof certifying (A) that all insurance required to be maintained pursuant to the Loan Documents conditions specified in Sections 4.02(a) and all endorsements in favor (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Collateral Agent required under Audited Financial Statements that has had or could be reasonably expected, either individually or in the Loan Documents aggregate, to have been obtained a Material Adverse Effect and are in effect;(C) the current Debt Ratings; and
(viii) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to any L/C Issuer, the Solvency of Swing Line Lender or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 The Administrative Agent shall have received original stock certificates or other certificates, if any, evidencing the Equity Interests pledged pursuant to the Security Instruments, together with an undated transfer power for each such certificate duly executed in Aggregate Commitments blank by the registered owner thereof, for any such Equity Interests that are certificated.
(c) The Administrative Agent shall have received the results of a Lien search (including a search as to judgments and tax matters), in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in assets of the same type as the Collateral of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Liens permitted pursuant to Section 7.01).
(d) Any fees and expenses required to be paid on or before the Closing Date under the Fee Letters or under any Loan Document shall have been paid.
(e) Unless waived by the Administrative Agent, the Company and the Foreign Borrower, as applicable, each shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement, the amendment and restatement of the Existing Credit Agreement and the obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is are all 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead Borrower;
(ii) a Note executed by the Borrowers 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 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 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 formed, and that each Loan Party of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in its state of organization and each other jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, and as to covering such matters concerning relating to the Loan Parties and Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders may reasonably request (includingrequest; provided, without limitationhowever, that opinions with respect to Subsidiary Guarantors that are not organized in the States of Delaware, Maryland and Michigan (other than enforceability opinions with respect to any Loan Document to which such Subsidiary Guarantors is a party which will not be from the jurisdiction of formation unless otherwise requested below), will be required only if requested by the Administrative Agent, in its sole discretion, with the understanding that enforceability opinions will be required with respect to any Loan Document to which such Subsidiary Guarantors is a party, which if the Administrative Agent has not requested other opinions in addition to enforceability, due authorization and perfection may be subject to necessary assumptions to avoid the requirement of having opinions from the Liens in favor jurisdiction of the Collateral Agent)formation of such Subsidiary Guarantors;
(vi) a certificate of a Responsible Officer of the Parent either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan 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 Parent certifying (A) that the conditions specified in clauses (a), Sections 5.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2December 31, 2015, 2023 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect to last day of the transactions contemplated herebyfiscal quarter of the Borrower ended on June 30, 2024, signed by a Responsible Officer of the Borrower;
(ix) a duly completed Unencumbered Pool Report calculated as of June 30, 2024, signed by a Responsible Officer of the Security Documents, each duly executed by the applicable Loan PartiesBorrower;
(x) all an executed Certificate of Beneficial Ownership and such other Loan Documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, each duly executed by including the applicable Loan PartiesUSA Patriot Act; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 The absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened in Aggregate Commitments any court or before any arbitrator or governmental authority related to the Loan that could reasonably be expected to have a Material Adverse Effect.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, existing and in good standing and qualified to engage in business in each under the Laws of the jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectincorporation or organization;
(v) a favorable opinion opinions of each of (A) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath(B) ▇▇▇▇▇▇▇, Swaine ▇▇▇▇▇▇ & ▇▇▇▇, P.C., LLC, local Alabama real estate counsel, (C) Stroock & Stroock & ▇▇▇▇▇ LLP, special counsel to the Loan PartiesTwin Brook, in and (D) McGuireWoods LLP, special counsel to The Children’s Place (Virginia), LLC, each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that that, excluding the filing for bankruptcy and the implementation of the bankruptcy proceeding of Hoop, there has been no event or circumstance since May 2, 2015, 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 (other than those referenced in Section 4.01(a)(iii) of this Agreement) are required in connection with the execution, delivery and performance by such 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, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of lenders under the Lead Borrower, Existing Credit Agreement satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments (including, without limitation, the Mortgage) and, to the extent not previously delivered to the Administrative Agent pursuant to the Existing Credit Agreement, certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement, duly executed by each of the parties thereto;
(xi) all other Loan Documents, each duly executed by the applicable Loan Parties; andParties and the other parties thereto;
(xixii) certified copies of the Note Documents, duly executed by the parties thereto, together with such other agreements, instruments and documents delivered in connection therewith as the Administrative Agent shall reasonably request;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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, or subordination agreements reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Collateral Agent for the delivery of such termination statements and releases have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof;
(xv) a Phase I environmental site assessment report in accordance with ASTM Standard E1527-05, in form and substance reasonably satisfactory to the Collateral Agent, from an environmental consulting firm reasonably acceptable to the Collateral Agent, which report shall identify recognized environmental conditions with respect to the Alabama Property and shall, to the extent possible, quantify any related costs and liabilities associated with such conditions, and the Collateral Agent shall be satisfied with the nature and amount of any such matters;
(xvi) an appraisal (based upon FMV) of the Alabama Property complying with the requirements of FIRREA by a third party appraiser reasonably acceptable to the Collateral Agent and otherwise in form and substance reasonably satisfactory to the Collateral Agent; and
(xvii) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans and the funding under the Note Purchase Facility, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $100,000,000 80,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the week ended on July 26, 2008, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and ending with the end of the then Fiscal Year, which condition shall be deemed to have been satisfied by the Administrative Agent’s receipt of the lender presentation dated June 2, 2008.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in Aggregate Commitments the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any Applicable Law or any Organization Document.
(h) The Borrowers shall have entered into the Note Purchase Facility, and the terms of, and the documentation evidencing, the Note Purchase Facility shall be reasonably satisfactory to the Administrative Agent.
(i) All fees required to be paid to the Agents on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(k) The Administrative Agent shall have received from Lenders all documentation and other than information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Lead Lenders executing this AgreementUSA PATRIOT Act.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (Childrens Place Retail Stores Inc)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent unless otherwise consented to or waived by the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of each of the other Loan Documents;
(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 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party of the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇, Cutler, Pickering, ▇▇▇▇ and ▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, dated as of the Closing Date in form and as substance satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;Material Adverse Effect; and
(ix) such other assurances, certificates, documents, consents or opinions as the Security Documents, each duly executed by Administrative Agent or the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2014. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer Fronting Bank 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers 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 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 partyDocuments;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each Loan Party the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan PartiesBorrower, in each caseand ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel to the Borrower, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties Borrower and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)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 certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect to last day of the transactions contemplated herebyfiscal quarter of the Borrower ended on March 31, 2010, signed by a Responsible Officer of the Borrower;
(ix) the Security DocumentsAudited Financial Statements (which shall be unqualified), the Projections and the most recently filed Statutory Statements for each duly executed by the applicable Loan PartiesMaterial Subsidiary;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesMaterial Subsidiary shall have an A- stable Financial Strength Rating; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the Fronting Bank or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before May 28, 2010. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Tower Group, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension Initial Term B 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 originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:):
(i) executed counterparts of this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerLenders in such number as the Agent may request;
(ii) a Note executed by the Borrowers 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 or is to be 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 be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require request as 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 each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectstanding;
(v) a favorable opinion of each of ▇(i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, (ii) local counsel in such jurisdictions as the Agent may reasonably request and (iii) general counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of this Section 4.02 4.1 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 to the Solvency of the Loan Parties as of the Closing Date after giving effect to the Transactions, and (D) to the knowledge of such Responsible Officer, that (1) no all consents, licenses or approvals are required in connection with the execution, delivery and performance by such the Loan Party and the validity against such Loan Party Parties of the Loan Documents to which it is a they are party, or (2) that all such consentsif any, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate release from the chief financial officer of agent under the Lead Borrower, SHC Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of Agent evidencing that the Loan Parties on a consolidated basis as liable in respect of the SHC Credit Agreement immediately prior to the Separation have been or concurrently with the Closing Date after giving effect to are being released as guarantors under the transactions contemplated herebySHC Credit Agreement and the other “Loan Documents” (as defined in the SHC Credit Agreement), and all Liens securing obligations of such Loan Parties under the SHC Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments (other than Mortgages and Control Agreements (as such term is defined in the Guaranty and Security Agreement) to be delivered post-closing) and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(x) all other Loan Documentsthe ABL Intercreditor Agreement, each duly fully executed by the applicable ABL Agent, the Agent, and acknowledged by the Loan Parties; and;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.1 and Liens for which termination statements satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(xii) the Agent shall have received an upfront fee in Dollars on the Closing Date in an amount equal to 0.50% of the principal amount of the Initial Term B Loans for the account of each Initial Term B Lender.
(xiii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or statements reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, (B) control agreements to the reasonable satisfaction of extent required under the Collateral Security Documents; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments The Agent shall have received evidence reasonably satisfactory to it that the Separation shall be consummated on the Closing Date.
(c) Substantially concurrently with the effectiveness of this Agreement, the ABL Facility shall become effective.
(d) All fees required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(e) The Borrower shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agent).
(f) The Agent and the Lenders 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 Act.
(g) [Reserved].
(h) The representations and warranties of each Loan Party contained in Article V or in any other Loan Document, shall be true and correct in all material respects on and as of the Closing Date, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and (ii) in the case of any representation and warranty qualified by materiality, in which case they shall be true and correct in all respects.
(i) No Default or Event of Default shall exist, or would result from Lenders the application of the proceeds thereof.
(j) The Agent shall have received a Committed Loan Notice in accordance with the requirements hereof. Without limiting the generality of the provisions of Section 9.4, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other than matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Lead Lenders executing this AgreementAgent 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 LC 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 facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Reaffirmation And Assumption Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note, provided, that each such Lender has returned its Note received pursuant to the Existing Credit Agreement, if any, as required by Section 2.11;
(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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of ▇(A) V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., outside counsel to the Borrower, and (B) J▇▇▇ ▇▇▇▇▇▇ LLP▇, counsel to General Counsel of the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan PartiesBorrower, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso 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 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) a duly completed Borrowing Base Certificate as of December 31, 2007;
(ix) a duly completed Compliance Certificate as of December 31, 2007, signed by a Responsible Officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and all endorsements is in favor effect;
(xi) evidence that, subject to the initial Borrowing hereunder, the excess of the Collateral Agent required Existing Lenders’ Existing Loans made under the Loan Documents Original Credit Agreement which shall not remain outstanding on and after the Closing Date as Loans under this Agreement shall have been repaid in full;
(xii) evidence that all of the Aggregate Commitments shall have been obtained and are in effect;effect ; and
(viiixiii) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Solvency Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date.
(d) All governmental and third party approvals (including landlords’ and other consents) necessary in connection with the continuing operations of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby;.
(ixe) The Administrative Agent shall have received the Security results of a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices in which UCC financing statements or other filings or recordations should be made to evidence or perfect (with the priority required under the Loan Documents) security interests in the Collateral, each duly executed and such search shall be reasonably satisfactory to the Lenders.
(f) Each document (including, without limitation, any UCC financing statement) required by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents Guarantee and instruments, including Uniform Commercial Code financing statements, required by Collateral Agreement or under law or reasonably requested by the Collateral Administrative Agent and the Arrangers to be filed, registered or recorded in order to create or perfect in favor of the first priority Liens intended Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to be created under the Loan Documents and all such documents and instruments any other Person (other than with respect to Permitted Liens), shall have been so filed, registered or recorded, in each case, recorded or shall have been delivered to the reasonable satisfaction of the Collateral Administrative Agent and the Arrangersin proper form for filing, registration or recordation.
(bg) Not less than $100,000,000 There shall be no litigation, public or private, or administrative proceedings, governmental investigation or other legal or regulatory developments, actual or threatened, that, singly or in Aggregate Commitments the aggregate, would reasonably be expected to result in a Material Adverse Effect on the Borrower and its Subsidiaries, taken as a whole, or would materially and adversely affect the ability of the Borrower and its Subsidiaries to fully and timely perform their respective obligations under the Loan Documents, or the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 been received written notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Holly Corp)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) completion of all due diligence with respect to (i) the Borrower, (ii) the Guarantors and (iii) the Properties included in the Borrowing Base on the Closing Date, in each case, in scope and determination satisfactory to the Joint Lead Arrangers and the Lenders in their sole discretion;
(b) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower and executed counterparts of the Guaranty;
(ii) a Note Notes executed by the Borrowers 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 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each the jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed 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 or substantially simultaneously with the Closing Date, the Total Outstandings shall not exceed the Borrowing Base minus any Permitted Unsecured Debt as of the Closing Date;
(viiviii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2013, 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 Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiix) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis Credit Agreement dated as of June 27, 2011, by and among the Borrower and certain subsidiaries and affiliates thereof, as the borrowers thereunder, the lenders party thereto and Bank of America, N.A., as administrative agent (the “Existing Credit Agreement”), has been or concurrently with the Closing Date after giving effect to is being terminated, all amounts owing thereunder have been paid in full and all Liens securing obligations under the transactions contemplated hereby;
(ix) Existing Credit Agreement, if any, have been or concurrently with the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesClosing Date are being released; and
(xi) all documents documentation and instruments, including Uniform Commercial Code financing statements, required by law or other information reasonably requested by the Collateral Agent Lenders in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Arrangers PATRIOT Act;
(xii) 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.
(c) Any fees required to be filed, registered paid on or recorded to create or perfect before the first priority Liens intended to be created under the Loan Documents and all such documents and instruments Closing Date shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangerspaid.
(bd) Not less than $100,000,000 in Aggregate Commitments Unless waived by the Administrative Agent, the Borrower shall have been paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Cole Real Estate Investments, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, action and 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its respective jurisdiction where its ownership, lease of organization or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel Parties acceptable to the Loan Parties, in each case, Agent addressed to the Administrative Agent and each Lender and Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect in form and substance satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate signed by a Responsible Officer of Borrower certifying that all insurance required to be maintained pursuant to the Loan Documents conditions specified in Sections 4.02(a) and all endorsements in favor of the Collateral Agent required under the Loan Documents (b) have been obtained and are in effectsatisfied;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect last day of the fiscal quarter of Borrower most recently ended prior to the transactions contemplated hereby;Closing Date, signed by a Responsible Officer of Borrower; and
(ix) such other assurances, certificates, documents, consents or opinions as Agent, the Security Documents, each duly executed by L/C Issuer or the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the may require with reasonable satisfaction of the Collateral Agent and the Arrangersadvance notice.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Agent, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent), in either case, to the extent invoiced prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and by each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerLender;
(ii) copies of the Organizational Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrowers in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Notesecretary or assistant secretary of such Loan Party to be true and correct as of 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 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 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 formed, and that the Company and each Loan Party Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of Pillsbury ▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, Parties and Cravath, Swaine & ▇▇▇▇▇▇ LLP▇. ▇▇▇▇▇▇▇, general counsel to for the Loan Parties, in each caseCompany, addressed to the Administrative Agent and each Lender and as party to such matters concerning this Agreement on the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Closing Date;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying (A) that the conditions specified in clauses (a), Sections 5.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied; and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;; and
(vii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all insurance loans thereunder shall have been repaid and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(b) Any fees required to be maintained pursuant to paid on or before the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents Closing Date shall have been obtained and are in effect;paid.
(viiic) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to Unless waived by the Administrative Agent, attesting the Company shall have paid all reasonable fees, charges and disbursements of counsel to the Solvency of Administrative Agent to the Loan Parties extent invoiced prior to or on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the ArrangersDate.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 the Administrative AgentAgent 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 Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) Pledge Agreements with respect to all Equity Interest Collateral;
(iv) Mortgage Assignments with respect to the SunChamp Collateral;
(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 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;
(ivvi) copies of each Loan Party’s 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 formed, and that each Loan Party of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvii) a favorable opinion of each of Jaffe, Raitt, Heuer and W▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, P.C., counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(viviii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 5.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the Closing Dateaggregate, a Material Adverse Effect; and (C) a calculation of the Leverage Ratio as of June 30, 2011;
(viix) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2011, signed by a Responsible Officer of the Borrower;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixii) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated and all Liens securing obligations under the transactions contemplated hereby;
(ix) Existing Credit Agreement have been or concurrently with the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesClosing Date are being released; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Committed Loan Note executed by the Borrowers in favor of each Lender requesting a Committed Loan Note, and (B) a Swing Line Loan Note executed by the Borrowers in favor of W▇▇▇▇ Fargo Retail Finance, LLC;
(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 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 formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of P▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇L▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the certain Security DocumentsDocuments and certificates evidencing any stock being pledge thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xiv) Collateral Access Agreement, as required by the Collateral Agent;
(xv) Freight forwarder agreements, as required by, and in form and substance satisfactory to, the Collateral Agent; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not less than $100,000,000 The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date for the then most recently ended fiscal week, and executed by a Responsible Officer of the Lead Borrower.
(c) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(d) The Administrative Agent shall have received and be satisfied with (i) a detailed Business Plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any default of any Material Contract or adverse change in the business, assets, operations, trade support, condition (financial or otherwise) or prospects of any Loan Party, which would reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) All fees and expenses required to be paid to the Agents pursuant to Sections 2.03, 2.09 and 10.04 and on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(i) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(j) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(k) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(l) Each Lender shall have received final credit approval to enter into the Agreement and the other Loan Documents (to which it is a party) and for its applicable Commitment, and to perform its obligations thereunder.
(m) The Agents shall have completed, and be satisfied with, its corporate and legal due-diligence of each Loan Party (including, but not limited to solvency), its examination of the Collateral, the Stores and distribution centers of the Loan Parties, and the capital structure of the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Iparty Corp)
Conditions of Initial Credit Extension. The obligation of the LC 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 facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) counterparts of the Guaranty executed by ProQuest Business Solutions, Inc. and ProQuest Information and Learning Company, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iiiiv) 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;
(ivv) copies of each Loan Party’s 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 formed, formed and that each Loan Party is validly existing, existing in good standing and qualified to engage in business in each the jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effectorganization or formation;
(vvi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPPLLC, counsel to the Loan Parties, substantially in the form of Exhibit G;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and Cravathapprovals required in connection with the execution, Swaine & ▇▇▇▇▇ LLPdelivery and performance by such Loan Party, counsel to and the validity against such Loan PartiesParty, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and of the Loan Documents as the Administrative Agent may reasonably request to which it is a party (includingand such consents, without limitationlicenses and approvals shall be in full force and effect) or (B) stating that no such consents, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)licenses or approvals are so required;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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, ;
(Cix) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) evidence that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on Existing Credit Agreement has been or substantially simultaneously concurrently with the Closing Date;Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(viix) evidence that all insurance required to be maintained pursuant to such other assurances, certificates, documents, consents or opinions as the Loan Documents and all endorsements in favor of Administrative Agent, any L/C Issuer, the Collateral Agent required under Swing Line Lender or the Loan Documents have been obtained and are in effect;Required Lenders reasonably may require.
(viiib) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance The Borrower shall have paid to the Administrative Agent, attesting the Arranger or any Lender all fees required to be paid on or before the Closing Date.
(c) The Borrower shall have paid all Attorney Costs of the Administrative Agent to the Solvency extent invoiced prior to or on the Closing Date.
(d) The Administrative Agent shall have received evidence, reasonably satisfactory to the Administrative Agent, that the Borrower has received gross cash proceeds of not less than $75,000,000 from the issuance of Senior Notes.
(e) There shall not have occurred a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Loan Parties on a consolidated basis as Borrower or of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents Borrower and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedits Subsidiaries taken as a whole, in each case, to case since the reasonable satisfaction date of the Collateral Agent and the ArrangersAudited Financial Statements.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Proquest Co)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder and of the Administrative Agent to endeavor to cause the L/C Issuer 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of Irell and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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 to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) that (1) no consents, licenses or approvals are required in connection with the execution, execution and delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, except for (a) the perfection or maintenance of the Liens created under the Security Documents (including the first priority nature thereof) or (2b) that all such consents, licenses and approvals as have been obtained or made and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of agent for the Lead Borrower, lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent, attesting Agent evidencing that the Existing Credit Agreement and all commitments to the Solvency of the Loan Parties on a consolidated basis as of lend thereunder have been or concurrently with the Closing Date after giving effect to are being terminated, all obligations (other than contingent indemnification obligations for which no claim has been asserted) thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral 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 or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases or subordination agreements have been made;
(xiii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedrecorded to the satisfaction of the Collateral Agent, (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements for the Loan Parties’ distribution centers and warehouses as required by the Collateral Agent; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $50,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on October 3, 2010, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) detailed financial projections and business assumptions for the Borrowers and their Subsidiaries on (x) a monthly basis for the twelve month period following the Closing Date and (y) on a quarterly basis, for each fiscal year thereafter through the Maturity Date, including, in each case, to a consolidated income statement, balance sheet, statement of cash flow and Availability analysis, each prepared in conformity with GAAP and consistent with the reasonable satisfaction of Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Collateral Agent and the ArrangersAdministrative Agent.
(bf) Not less than $100,000,000 There shall not have occurred since January 3, 2010 (i) any event or condition that has had or could reasonably be expected, either individually or in Aggregate Commitments the aggregate, to have a Material Adverse Effect or (ii) any action, suit, investigation or proceeding pending or, to the Knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that if determined adversely to the Loan Parties could reasonably be expected to have a Material Adverse Effect.
(g) Each Material Contract of any Loan Party shall be in full force and effect and no default or event of default shall have occurred and be continuing thereunder.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Laws or any Organization Document.
(i) All fees required to be paid to the Agents or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of examiners and appraisers to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(k) The Administrative Agent shall have received from Lenders 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 USA PATRIOT Act.
(l) The Arranger shall have successfully arranged the syndication of the Loans as contemplated in its engagement letter with the Loan Parties.
(m) All governmental consents and approvals, and all third party consents required for the Loan Parties to consummate the financing shall have been obtained.
(n) The Administrative Agent shall be reasonably satisfied with the capital structure of the Loan Parties. Without limiting the foregoing, the Loan Parties shall not have any Indebtedness outstanding as of the Closing Date other than Permitted Indebtedness and prior to the Lead Lenders executing Credit Extensions hereunder and application of part or all of the proceeds thereof to satisfy the obligations outstanding under the Existing Credit Agreement, Indebtedness under the Existing Credit Agreement. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this AgreementSection 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates executed counterparts of the that certain Omnibus Reaffirmation, Ratification and Amendment Agreement, duly executed by the Borrower and Guarantor, together with:
(A) results of lien searches for filings in the jurisdictions referred to in Section 4.01(a)(iii)(A) that name the Borrower as debtor, and
(B) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) [reserved];
(v) certified copies 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;
(ivvi) copies of each Loan Party’s 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 formedincorporated and in good standing in Bermuda, and including without limitation certificates of compliance issued by the Registrar of Companies of Bermuda for each Loan Party, dated a date close to the date of this Agreement, stating that each Loan Party is validly existing, duly incorporated and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation under the Companies ▇▇▇ ▇▇▇▇ of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectBermuda;
(vvii) a favorable opinion opinions of each of (1) ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, counsel to the Loan Parties, (2) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ LLPLimited, special Bermuda counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, (3) appropriate local counsel to the Loan Parties, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(viviii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, Guarantor certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the Closing Dateaggregate, a Material Adverse Effect;
(viix) a duly completed Compliance Certificate as of the last day of the respective fiscal quarters of the Borrower and the Guarantor ended on March 31, 2022, signed by Responsible Officers of the Borrower and the Guarantor;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained, is in effect and all contains endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to naming the Administrative Agent, attesting to the Solvency on behalf of the Loan Parties on Lenders, as a consolidated basis joint assured and/or co-loss payee, as of the Closing Date after giving effect to the transactions contemplated herebycase may be, under such insurance;
(ixxii) evidence that all filings, recordations and searches necessary or desirable to perfect the Security Documents, each duly executed Lien on any property granted to or held by the applicable Administrative Agent under any Loan PartiesDocument shall have been completed, and that all related filing and recording fees and taxes shall have been duly paid;
(xxiii) all other Loan Documents, each a Borrowing Base Certificate duly executed certified by a Responsible Officer of the applicable Loan PartiesBorrower relating to the initial Credit Extension; and
(xixiv) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(i) All fees required by law or reasonably requested by to be paid to the Collateral Administrative Agent and the Arrangers to be filed, registered on or recorded to create or perfect before the first priority Liens intended to be created under the Loan Documents and all such documents and instruments Closing Date shall have been so filed, registered or recorded, in each case, paid and (ii) all fees required to be paid to the reasonable satisfaction of Lenders on or before the Collateral Agent and the ArrangersClosing Date shall have been paid.
(bc) Not less than $100,000,000 Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Administrative Agent shall have completed a due diligence investigation of the Guarantor, the Borrower and their respective Subsidiaries in Aggregate Commitments scope, and with results, satisfactory to the Administrative Agent and shall have been given such access to the management, records, books of account, contracts and properties of the Guarantor, the Borrower and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing persons and businesses as they shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employees, the annual (or other audited); and no changes or developments shall have occurred, and no new or additional information, shall have been received from or discovered by the Administrative Agent or the Lenders regarding the Guarantor, the Borrower or their respective Subsidiaries or the transactions contemplated hereby after March 31, 2022 that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and nothing shall have come to the attention of the Administrative Agent or the Lenders to lead them to believe that the transactions contemplated hereby will have a Material Adverse Effect.
(e) No action, suit, investigation or proceeding is pending or, to the knowledge of the Guarantor or 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) All interest and fees accrued under the Existing Credit Agreement through the Closing Date shall have been paid in full by the Borrower, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(g) Upon the reasonable request of any Lender made at least seven (7) 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 than information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Lead Lenders executing 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, to the extent that the Borrower or Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification.
(h) No Default shall have occurred and be continuing under the Existing Credit Agreement immediately before the Closing Date or under this Agreement immediately after the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be 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, including the Pledge Agreement and the Security Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
Agent and each of the Lenders: (i) fully executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
Borrower and, if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and number acceptable to the Administrative Agent; (ii) a Note executed by the Borrowers 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 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 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 formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
; (v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to Borrower (on behalf of each of the Loan Parties, in each case), addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Initial Credit Extension. The obligation of the LC 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 or telecopies .pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note Notes executed by 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 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 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 formed, and that each Loan Party of the Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) such financial information relating to the Borrowers and their Subsidiaries as the Administrative Agent may request;
(vi) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Fox Rothschild LLP, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each caseToro Luxembourg, addressed to the Administrative Agent and each Lender and Lender, substantially in the form attached at Exhibit F or as otherwise reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Toro certifying (A) that the chief financial officer 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 Lead BorrowerAudited Financial Statements that has resulted or could reasonably be expected to result in, satisfactory either individually or in form the aggregate, a Material Adverse Effect; (C) there does not exist any pending or threatened action, suit, investigation or proceeding in any court or before any arbitrator or Governmental Authority that (x) would, if determined adversely to Toro or any Subsidiary, materially and substance adversely affect Toro or Toro and its Subsidiaries, taken as a whole, or (y) purports to affect any transaction contemplated under this Agreement or any Loan Document or the Administrative Agent, attesting ability of any Borrower to perform its respective obligations under this Agreement or any Loan Document; and (D) the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebycurrent Debt Ratings;
(ix) a duly completed Compliance Certificate as of the Security Documentslast day of the fiscal quarter of Toro most recently ended prior to the Closing Date, each duly executed signed by the applicable Loan Partiesa Responsible Officer of Toro;
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all other Loan Documents, each duly executed by indebtedness thereunder has been paid and satisfied in full and all Liens if any securing obligations under the applicable Loan Parties; andExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(xi) all documents (A) upon the reasonable request of any Lender made at least seven days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and instrumentsother information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedAct, in each case, case at least two days prior to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.Closing Date; and
Appears in 1 contract
Sources: Credit Agreement (Toro Co)
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and Cravath▇▇▇▇▇▇▇, Swaine ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.May
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC 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 (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, 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 AgentAgent 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 Lead Borrower;
(ii) a Revolving Loan Note executed by the Borrowers Borrower in favor of each Lender requesting a Revolving Loan Note;
(iii) the Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(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 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;
(ivv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Loan Parties, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇, special Barbados counsel to the Loan Partiesfor HOT-Barbados, and Cravath▇▇▇▇▇▇▇, Swaine ▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇, special Bermuda counsel to the Loan Partiesfor Limited, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, 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 all consents, licenses or and approvals are required in connection with the execution, delivery and performance by 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 (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Limited certifying (A) that the chief financial officer 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 Lead BorrowerAudited Financial Statements that has had or could be reasonably expected to have, satisfactory either individually or in form the aggregate, a Material Adverse Effect; and substance to the Administrative Agent, attesting to the Solvency (C) a calculation of the Loan Parties on a consolidated basis Leverage Ratio as of the Closing Date after giving effect last day of the fiscal quarter of Limited most recently ended prior to the transactions contemplated herebyClosing Date;
(ix) evidence that the Security Documents, each duly executed by Existing Credit Agreement has been or concurrently with the applicable Loan PartiesClosing Date is being terminated and obligations thereunder have been or concurrently with the Closing Date are being paid or satisfied in full;
(x) all other evidence satisfactory to the Administrative Agent that the OXO Acquisition shall have been consummated (or shall be consummated simultaneously with the initial Loan Documents, each duly executed by hereunder) pursuant to the applicable Loan Partiesterms of the OXO Acquisition Agreement;
(xi) the Bridge Notes shall have been or concurrently with the Closing Date issued; and
(xixii) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative 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 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 Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Helen of Troy LTD)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer and each Lender to make its initial Credit Extension hereunder this Agreement 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 or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by 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 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 be become a party;
(iv) copies of each Loan Party’s 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 formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where 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 each of ▇Bass, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLPPLC, counsel to the Loan Parties, and Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, 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) to the Solvency of the Loan Parties as of the Third Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such 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, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the applicable Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyParties;
(ix) the Security all other Loan Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documentsan updated commercial finance exam, each duly executed by the applicable Loan Parties; andresults of which are satisfactory to the Agent (which commercial finance exam will not be counted toward such commercial finance exam limits in Section 6.10(b));
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the 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 or subordination agreements satisfactory to the Agent are being tendered concurrently herewith or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases have been made;
(xii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may require.
(b) Not less After giving effect to (i) any Loans outstanding hereunder, (ii) any charges to the Loan Account made in connection herewith and (iii) all Existing Letters of Credit and any other Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be greater than $100,000,000 in Aggregate Commitments 25,000,000 (calculated without giving effect to clause (a) of the Loan Cap).
(c) The Agent shall have been received from Lenders other than a Borrowing Base Certificate dated the Third Restatement Date, relating to the period ended on February 25, 2023, and executed by a Responsible Officer of the Lead Lenders executing this AgreementBorrower.
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Sources: Credit Agreement (Kirkland's, Inc)