Conditions Precedent to Closing Date. The obligation of each Lender to make its Loan on the occasion of the Borrowing is subject to the satisfaction (or waiver in accordance with Section 9.05) of the following conditions: (a) the Effective Date shall have occurred; (b) receipt by the Agent of the Notice of Borrowing as required by Section 2.02; (c) receipt by the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent; (d) receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder; (e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02; (f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration)); (g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing; (h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and (i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on all parties hereto.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation of each Lender to make its Loan on the occasion occurrence of the Borrowing Closing Date is subject to the satisfaction conditions precedent that the Administrator and each Purchaser Agent shall have received on or before the date of such purchase the following, each in form and substance (or waiver in accordance with Section 9.05including the date thereof) of satisfactory to the following conditionsAdministrator and each Purchaser Agent:
(a) A counterpart of this Agreement and the Effective Date shall have occurred;other Transaction Documents duly executed by the parties thereto.
(b) receipt Certified copies of (i) the resolutions of the Board of Directors of each of the Seller, the Servicer and the Originator authorizing the execution, delivery, and performance by the Agent Seller, the Servicer and the Originator of the Notice Transaction Documents to which they are a party, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Agreement and the other Transaction Documents and (iii) the certificate of Borrowing as required by Section 2.02;incorporation and by-laws of the Seller, the Servicer and the Originator.
(c) receipt by the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer A certificate of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt by the Agent and the Arranger Secretary or Assistant Secretary of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations Seller, the Servicer and the Originator certifying the names and true signatures of its officers authorized to sign the Agreement and the other Transaction Documents to which it is a party. Until the Administrator receives a subsequent incumbency certificate from the Seller, the Servicer and the Originator in form and substance satisfactory to the Administrator, the Administrator shall be true entitled to rely on the last such certificate delivered to it by the Seller, the Servicer and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective periodOriginator, as the case may be); provided that .
(d) Copies of (i) the Limited Duration Waiver Agreement duly executed by each of the parties thereto, (ii) the CoBank Limited Duration Waiver (as defined in the Limited Duration Waiver Agreement) duly executed by each of the parties thereto and (iii) the Credit Agreement Limited Duration Waiver (as defined in the Limited Duration Waiver Agreement) duly executed by each of the parties thereto.
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) [Intentionally Omitted].
(h) Favorable opinions of B▇▇▇▇ & M▇▇▇▇▇▇▇, LLP, counsel for the Seller, in form and substance acceptable to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”Administrator and covering such matters as the Administrator may reasonably request, “material adverse change” or similar term or qualificationincluding, the same shall be true without limitation, organizational and correct in all respects; andenforceability matters, certain bankruptcy matters, and certain UCC perfection and priority matters.
(i) [Intentionally Omitted].
(j) A copy of the fact Servicer Report as of August 31, 2008.
(k) Evidence (i) of the execution and delivery by each of the parties thereto of the amendment to the Purchase and Contribution Agreement, dated as of the date hereof, and all documents, agreements and instruments contemplated thereby (which evidence shall include copies, either original or facsimile, of each of such documents, instruments and agreements) and (ii) that there each of the conditions precedent to the execution and delivery of the amendment to the Purchase and Contribution Agreement referred to above has been satisfied to the Administrator’s satisfaction.
(l) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by each Purchaser Group Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Administrator and each Purchaser Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall not have occurredconstitute the Administrator’s and each Purchaser Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings; including any such costs, since fees and expenses arising under or referenced in Section 6.4.
(m) Each Purchaser Group Fee Letter between the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company Seller and the Lenders applicable Purchaser Agent as contemplated by Section 1.5.
(n) Good standing certificates with respect to the Seller, the Originator, each Transferor and the Servicer issued by the Secretaries of State of the Closing DateStates of such Person’s organization and principal place of business.
(o) Such other approvals, and such notice shall be conclusive and binding on all parties heretoopinions or documents as the Administrator may reasonably request.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Pilgrims Pride Corp)
Conditions Precedent to Closing Date. The obligation of each Lender to make its Loan on the occasion of the Borrowing is subject to the satisfaction (or waiver in accordance with Section 9.05) of the following conditions:
(a) the Effective Date shall have occurred;
(b) receipt by the Agent of the Notice of Borrowing as required by Section 2.02;
(c) receipt by the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders occurrence of the Closing Date, and the obligation of the Issuing Bank to issue any LOC, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received the following, each dated the Closing Date (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and in sufficient copies for each Bank:
(i) Certified copies of the resolutions of the Board of Directors of Pulte approving the transactions contemplated by the Loan Documents.
(ii) A certificate of Pulte, signed by a Responsible Officer and by the Secretary or any Assistant Secretary of Pulte, certifying as to (1) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (2) the absence of any Default.
(iii) A certificate of the Secretary or an Assistant Secretary of Pulte certifying the names and true signatures of the officers of Pulte that are authorized to sign the Loan Documents and the other documents to be delivered hereunder.
(iv) Favorable opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsel for Pulte, in substantially the form of Exhibit D.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting Pulte or any of its Subsidiaries pending or threatened in writing before any court, governmental agency or arbitrator that (x) would be reasonably expected to have a Material Adverse Effect or (y) would reasonably be expected to materially adversely affect the legality, validity or enforceability of any Loan Document or the transactions contemplated thereby.
(c) No development or change shall have occurred after March 31, 2009, and no information shall have become known after such notice date, that has had or would reasonably be expected to have a Material Adverse Effect.
(d) Pulte shall be conclusive have paid all fees of the Administrative Agent and binding on the Banks and all parties heretoexpenses of the Administrative Agent (including the fees and expenses of counsel to the Administrative Agent), in each case to the extent then due and payable.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation of each Lender Credit Agreement will contain conditions precedent to make its Loan on the occasion Closing of the Facility which are customary for this type of transaction, including without limitation: ================================================================================ J.P. MORGAN SECURITIES INC. UBS SECU▇▇▇▇▇▇ ▇▇▇ 4 EDUCATION REALTY TRUST DECEMBER 2004 ================================================================================ o Documentation on terms consistent with the provisions of this summary and in form and substance reasonably satisfactory to the Agent and its counsel. o Satisfactory opinions from Borrower and Guarantor's coun▇▇▇, ▇▇▇luding opinions relating to the enforceability of the loan documents, due organization and other items, as specified. o The contemplated initial public offering ("IPO") of the Guarantor's stock shall have been completed. CONDITIONS PRECEDENT TO EACH ADVANCE: Concurrent with each request for funding under the Facility, the Borrower will provide to the Agent: o Calculation of Borrowing Base Availability, and o Certificate signed by the Chief Financial Officer of the Managing Member of ERTOP indicating continued compliance with all covenants under the Facility. DUE DILIGENCE FOR THE ADMISSION OF EACH PROPERTY INTO THE COLLATERAL POOL: Each property is subject to certain due diligence requirements. The due diligence information of each property shall include, but not be limited to: a valid certificate of occupancy or similar certificate, proof of insurance (satisfactory to Agent), property insurance, a copy of a current title report along with copies of all items of record, an ALTA survey certified to the satisfaction Agent, an inspection report by an architect or engineer approved by the Agent, an environmental report (or waiver in accordance with Section 9.05) acceptable to Agent), UCC searches by county and state, a current rent roll, a FIRREA conforming appraisal, a copy of the following conditions:
(a) the Effective Date shall have occurred;
(b) receipt by the Agent purchase agreement, recent photos of the Notice property, last three years of Borrowing as required by Section 2.02;
(c) receipt by the Agent of operating statements, a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt site visit by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and a pro forma operating statement. The Borrower will also provide such other compensation due and required to information as may be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined requested by the Agent. The Agent, without its counsel and other professionals engaged by Agent shall have sufficient time to review and approve the consent due diligence information prior to inclusion of a property in the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction Collateral Pool. The Borrower will purchase and provide a mortgagee's title policy in the amount of the Acquisition consideration shall not be deemed to be Aggregate Commitment by a modification which is adverse in a material respect title underwriter acceptable to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis Agent subject only to coverage exceptions and encumbrances approved by the amount of such decrease Agent in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on all parties heretoits sole discretion.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, the Closing Date shall not occur until and unless each Lender to make its Loan on the occasion of the Borrowing is subject to the satisfaction (or waiver in accordance with Section 9.05) and every one of the following conditionsconditions has been satisfied or waived, in Lender’s sole discretion:
(a) the Effective Date Borrower shall have occurreddelivered to Lender all documents required by Lender to be delivered on or before the Closing Date;
(b) Lender shall have received from Borrower current interim and, or fiscal year end financial statements, all updated pro-forma financial information, copies of all public filings and disclosures, evidence of receipt by the Agent of the Notice all necessary governmental approvals, required certifications, including, but not limited to, compliance with all laws, payment of Borrowing all taxes and satisfaction of all insurance requirements, and such legal opinions as may reasonably be required by Section 2.02Lender;
(c) receipt by the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are SolventNo Material Adverse Effect shall have occurred or shall exist;
(d) receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed No Default or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respectscontinuing; and
(ie) Lender has received an executed copy of the fact that there shall not have occurredAddendum to Macadamia Nut Purchase Agreement dated July , since 2008 between Mauna Loa Macadamia Nut Corporation and Borrower (the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect“Addendum to Nut Purchase Agreement”) with terms and conditions to be approved by Lender. The Agent Addendum to Nut Purchase Agreement shall promptly notify terminate no sooner than June 30, 2009, unless terminated earlier as provided in the Company and Macadamia Nut Purchase Agreement. In addition, the Lenders Addendum to Nut Purchase Agreement shall include a requirement for Mauna Loa to purchase a minimum of the Closing Date, and such notice 9 million wet in shell pounds of macadamia nuts from Borrower up to a maximum of 12 million wet in shell pounds. The minimum price shall be conclusive $0.60 per pound, adjusted to 20% moisture and binding on all parties hereto30% saleable kernel recovery to dry shell.
Appears in 1 contract
Conditions Precedent to Closing Date. Notwithstanding the execution and delivery of this Amended Agreement by all parties hereto, the Existing Credit Agreement shall remain in full force and effect and shall not be amended hereby unless and until the Closing Date occurs. The effectiveness of the amendment and restatement of the Existing Credit Agreement to be effected by this Amended Agreement, and the obligation of each Lender to make its Loan any Revolving Facility Advance and any Swingline Advance, if any, on the occasion of Closing Date shall occur at the Borrowing is Closing Time on the Closing Date and shall be subject to the satisfaction (or waiver in accordance with Section 9.05) of the following conditionsconditions precedent that:
(a) the Effective Date The Administrative Agent shall have occurredreceived certified copies of the respective certificates of incorporation and bylaws of the Borrower and its corporate Subsidiaries and the respective certificates of limited partnership and agreements of limited partnership for the partnership Subsidiaries;
(b) receipt by The Borrower shall have paid or caused to be paid, or the Administrative Agent shall have received evidence satisfactory to it in its sole good faith discretion that on the Closing Date the Borrower shall pay, or cause to be paid, (i) all interest and commitment fees that are accrued but unpaid to the Closing Date under the Existing Credit Agreement (whether or not then payable under the terms thereof), (ii) all fees and expenses (if any) payable under Section 8.04 of the Existing Credit Agreement, (iii) all accrued fees and expenses of the Administrative Agent, the Documentation Agent, the Syndication Agent, the Co- Arrangers and the Lenders, including without limitation the amendment fees payable under Section 2.06(B), (iv) all amounts payable pursuant to Section 2.04(G) and (v) all fees and expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, in connection with the preparation, execution and delivery of this Agreement, the other Loan Documents and the consummation of the transactions contemplated hereby and thereby, in each case for which the Borrower has received a statement on or before the Closing Date;
(c) There shall not have been any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the Borrower or any of its Subsidiaries since December 31, 1996;
(d) Except for the Disclosed Litigation, there shall exist no pending or threatened action, suit, investigation, litigation or proceeding in any court or before any arbitrator or governmental instrumentality which, in the reasonable opinion of the Lenders, could have a material adverse effect on the condition (financial or otherwise), operations, properties or prospects of the Borrower or any of its Subsidiaries or which, in the reasonable opinion of the Majority Lenders, may adversely affect the legality, validity or enforce ability of this Agreement, any other Loan Document or any Related Document, the ability of any Loan Party to perform its obligations hereunder or thereunder, or the rights of any Lender hereunder or thereunder or the ability of any Lender to exercise such rights;
(e) All material governmental and third party consents and approvals necessary or, in the opinion of the Majority Lenders, desirable or appropriate in connection with the Closing Date Transactions shall have been obtained (without the imposition of any conditions other than conditions that have been satisfied or waived on or before the Closing Date) and shall be in effect (it being understood that all Federal governmental consents and approvals are material);
(f) The Administrative Agent shall have received the following, each effective on the Closing Date (unless otherwise indicated below), in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender (except for the Notes):
(1) A Notice of Borrowing as required by Section 2.02;
(c2.02(A) receipt by the Agent in respect of a certificate, substantially in the form of Exhibit D, dated the Closing Date each Borrowing and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required Swingline Advance to be reimbursed or paid borrowed on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment dated the date of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunderits delivery;
(e2) Evidence of receipt by the Administrative Agent from each Lender of a certificate, dated the Closing Date and signed all amounts payable by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this such Lender pursuant to Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration)2.04(B);
(g3) the fact that, immediately before The Revolving Facility Notes and after giving effect Swingline Note to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date order of the Borrowingrespective Lenders;
(h4) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) Duly executed counterparts of this Amended Agreement, signed by each of the Specified Representations shall be true and correct in all material respectsparties hereto (or, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation Lender as to which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there an executed counterpart shall not have occurredbeen received, since receipt by the Acquisition Agreement DateAdministrative Agent in form satisfactory to it of telegraphic, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders telex or other written confirmation from such Lender of execution of a counterpart hereof by such Lender);
(5) Duly executed counterparts of the Closing Date, 1997 Global Collateral Documents and such notice shall be conclusive and binding on all parties hereto.Guaranty Agreement Amendment; and
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation agreement of each Lender to make its Loan Term Loans on the occasion of the Borrowing Closing Date is subject solely to the satisfaction (or waiver in accordance by the Administrative Agent and the Required Lenders, prior to or substantially concurrently with Section 9.05) the making of the Term Loans on the Closing Date, of the following conditionsconditions precedent:
(1) The Administrative Agent shall have received the following:
(a) this Agreement, dated as of the Effective Date shall have occurred;Closing Date, duly executed and delivered by Holdings and each Borrower and the other parties party thereto.
(b) receipt the US Collateral Agreement, the Guaranty, the Intellectual Property Security Agreements and the Fee Letter, in each case, dated as of the Closing Date, duly executed and delivered by each of the Loan Parties party thereto.
(2) The Chapter 11 Cases shall have been commenced in the Bankruptcy Court and all of the First Day Orders shall have been entered by the Agent Bankruptcy Court and such orders and all related pleadings shall be in form and substance reasonably satisfactory to the Required Lenders and consistent with the Approved Budget.
(3) The Interim DIP Financing Order shall have been entered by the Bankruptcy Court within three (3) Business Days of the Notice Petition Date and the Administrative Agent shall have received a true and complete copy of Borrowing as required by Section 2.02;
(c) receipt by the Agent of a certificatesuch order, substantially and such order shall be in the form of Exhibit DB, dated the Closing Date hereto, be in full force and signed by the chief financial officer effect and shall not have been reversed, modified, amended, stayed or vacated absent prior written consent of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt by the Administrative Agent and the Arranger Required Lenders.
(4) No order shall have been entered appointing a trustee, examiner or receiver (or local law equivalent) with respect to any of the Loan Parties’ or their respective Subsidiaries’ business, properties or assets.
(5) The Borrower shall have paid (a) to the Administrative Agent, all fees, reasonable out-of-pocket expenses and other compensation due and fees required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or pursuant to the Fee Letter, including and (b) to the extent invoiced at least three Domestic Business Days prior to Administrative Agent and the Lenders, the fees, costs and expenses then earned, due and payable under the Loan Documents (including, without limitation, the fees, costs and expenses of the Lender Advisors in connection with the Chapter 11 Cases and the negotiation, preparation, execution and delivery of the Loan Documents and the RSA).
(6) The Administrative Agent shall have received a certificate of a Responsible Officer of Holdings, dated the Closing Date, reimbursement and attaching (or payment referencing resolutions made available to the Agent and Lender Advisors) and certifying true and complete copies of all reasonable out-of-pocket expenses required to be reimbursed or paid resolutions of each of the Debtors, duly adopted by the Company hereunder Board of Directors (or thereunder;
(eequivalent body in the Relevant Jurisdiction of such Debtor, including if required by law in any applicable jurisdiction, a copy of the resolutions or its shareholders meeting) receipt by of such Debtor authorizing the Agent execution, delivery and performance of the Loan Documents to which it is a certificate, dated party or any other document delivered in connection herewith on the Closing Date and signed certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(7) [reserved]
(8) [reserved]
(9) [reserved]
(10) [reserved]
(11) The Administrative Agent, for its benefit and the benefit of each other Secured Party, shall have been granted a perfected lien on the Collateral by the Interim DIP Financing Order on the terms and conditions and, with the requisite priority, set forth herein and in the other Loan Documents. The Security Documents and the Interim DIP Financing Order, upon entry thereof and subject to the terms thereof, shall be effective to create in favor of the Collateral Agents, for the benefit of the Secured Parties, legal, valid, enforceable, perfected and (if applicable) unavoidable Liens on and security interests in the Collateral as set forth in Section 3.14 and Section 20 to the Interim DIP Financing Order. The Loan Parties shall have delivered UCC financing statements (or, where available, local equivalent), in suitable form for filing, and shall have made arrangements for the filing thereof that are reasonably acceptable to the Administrative Agent and the Required Lenders.
(12) The Borrowers and the Administrative Agent shall have established the DIP Account.
(13) To the extent included in the Collateral and required to be pledged pursuant to the Security Documents on the Closing Date, the Loan Parties shall have used their commercially reasonable efforts to deliver to the Administrative Agent the certificates representing the Equity Interests (if such Equity Interests are certificated) owned by each Loan Party, in each case together with an undated stock power or stock transfer form for each such certificate executed in blank by a duly authorized officer of the Companypledgor thereof, confirming compliance to the extent applicable.
(14) The Administrative Agent shall have received the Approved Budget in form and substance acceptable to the Required Lenders, it being understood that the budget attached to the form of Interim DIP Financing Order attached hereto as Exhibit B is an Approved Budget.
(15) The Borrowers shall have paid (or caused to be paid) to the Administrative Agent and Lenders the fees, costs and expenses then earned, due and payable under the Loan Documents (including, without limitation, the fees, costs and expenses of the Lender Advisors in connection with the Chapter 11 Cases and the negotiation, preparation, execution and delivery of the Loan Documents and the RSA).
(16) The RSA shall not have been terminated by all of the applicable parties thereto and shall be in full force and effect and the RSA shall not have been modified, amended, or otherwise changed absent prior written consent of each of the parties thereto required for such modification, amendment or change.
(17) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower on behalf of the Loan Parties certifying that (x) the conditions precedent set forth in clauses this Section 4.01 have been satisfied and (f), (g), (hy) and either (i) all authorizations or approvals of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently any Governmental Authority and approvals or consents of any other Person, required in connection with the BorrowingLoan Documents shall have been obtained, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) that no such authorizations, approvals, and consents are so required.
(18) The Administrative Agent shall have received a customary legal opinion of K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, special New York counsel to the Commitments are reduced on Loan Parties and covering such matters customarily covered in opinions of this type as the Required Lenders shall reasonably request.
(19) Other than as a dollar-for-dollar basis by result of the amount of such decrease Chapter 11 Cases or as otherwise disclosed in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except first day declaration in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurredChapter 11 Cases, since December 31, 2022, there has not occurred any event, occurrence, effect, fact, condition, change or development that has had, or would reasonably be expected to have, individually or in the Acquisition Agreement Dateaggregate, any Acquired Entity a Material Adverse Effect. .
(20) There shall exist no action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Chapter 11 Cases and any action, suit, investigation or proceeding arising from the commencement and continuation of the Chapter 11 Cases or the consequences that would normally result from the commencement and continuation of the Chapter 11 Cases) that is not stayed and could reasonably be expected to result in a Material Adverse Effect.
(21) All necessary governmental and third party consents and approvals necessary in connection with this Agreement and the transactions contemplated hereby shall have been obtained (without the imposition of any materially adverse conditions that are not acceptable to the Required Consenting First Lien Lenders (as defined in the RSA)) and shall remain in effect; and the making of the loans under this Agreement shall not violate any material applicable requirement of law and shall not be enjoined temporarily, preliminarily or permanently.
(22) The Administrative Agent shall promptly notify have received at least two (2) Business Days prior to the Company Closing Date all documentation and other information about the Loan Parties as has been reasonably requested in writing at least three (3) days prior to the Closing Date by the Administrative Agent that it reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and the Lenders Proceeds of the Closing Date, and such notice shall be conclusive and binding on all parties heretoCrime Act.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Term Loan Credit Agreement (Venator Materials PLC)
Conditions Precedent to Closing Date. The obligation effectiveness of each Lender to make its Loan on this Agreement and the occasion occurrence of the Borrowing Closing Date is subject to the satisfaction (or waiver in accordance with Section 9.0511.5 hereof; provided, that the Agent (acting at the direction of the Blackstone Representative may, in its sole discretion, agree to allow the satisfaction of any such conditions within a reasonable period of time after the Closing Date) of the following conditions:
(a) the Effective Agent’s and the Lenders’ receipt of (i) the Loan Documents (including, to the extent requested by a Lender, a Term Loan Note, executed by Borrower, but excluding the Collateral Documents and any Loan Document described in Schedule 5.14 of the Disclosure Letter as in effect on the Closing Date to be delivered after the Closing Date) executed and delivered by each applicable Credit Party and Lender, which Loan Documents shall have occurredbe in form and substance reasonably satisfactory to the Blackstone Representative, the Disclosure Letter, and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to the Blackstone Representative) and (ii) the Collateral Documents (excluding any Loan Documents described in Schedule 5.14 of the Disclosure Letter as in effect on the Closing Date) dated as of the Funding Date, executed in escrow by each of the applicable Loan Parties and the Agent, to the extent applicable, and circulated but not released, which Collateral Documents shall be in form and substance reasonably satisfactory to the Agent and the Blackstone Representative;
(b) the Agent’s and the Lenders’ receipt by the Agent of (i) true, correct and complete copies of the Notice Operating Documents of Borrowing as required by Section 2.02each of the U.S. Credit Parties, and (ii) a Secretary’s Certificate with respect to each U.S. Credit Party dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to the Blackstone Representative);
(c) the Agent’s and the Lenders’ receipt by the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer of the CompanyPerfection Certificate for Borrower and the other Credit Parties, certifying that the Company in form and its Subsidiaries, on a consolidated and pro forma basis after giving effect substance reasonably satisfactory to the Transactions, are Solvent;Blackstone Representative
(d) copies of the appropriate UCC financing statement forms and U.S. intellectual property filing documents, as applicable, with respect to the Collateral of the U.S. Credit Parties, in each case, for filing with the appropriate entity on or promptly after the Funding Date;
(e) the Agent’s and the Lenders’ receipt of a good standing certificate for each U.S. Credit Party, certified by the Agent and the Arranger Secretary of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter State (or the Fee Letter, including to equivalent thereof) of the extent invoiced at least three Domestic Business Days jurisdiction of incorporation or formation of such U.S. Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
(f) the Agent’s and the Lenders’ receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each U.S. Credit Party, reimbursement in form and substance reasonably satisfactory to the Blackstone Representative;
(g) the Agent’s and the Lenders’ receipt of (i) the resolutions of the board of directors for each U.K. Credit Party or payment other appropriate governing body approving and authorizing the execution, delivery and performance of all reasonable out-of-pocket expenses each Loan Document to which it is a party and (ii) the resolutions of the sole member of each U.K. Credit Party approving and authorizing the execution, delivery and performance of each Loan document to which it is a party and amending the articles of association of each U.K. Credit Party (as applicable);
(h) [Reserved];
(i) [Reserved];
(j) [Reserved];
(k) [Reserved];
(l) the Blackstone Representative shall have received the Securities Purchase Agreement;
(m) the Agent’s and the Lenders’ receipt of duly executed notices of assignment or charge (as applicable) required to be reimbursed or paid by sent pursuant to the Company hereunder or thereunderEnglish Debenture, to be held in escrow;
(en) receipt each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Blackstone Representative;
(o) the Agent’s and the Lenders’ receipt of legal opinions of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLC and Holland & Knight LLP, in each case in form and substance reasonably satisfactory to the Blackstone Representative;
(p) the Agent’s and the Lenders’ receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of the Agent (such evidence to be in form and substance reasonably satisfactory to the Blackstone Representative);
(q) the Agent’s and the Lenders’ receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(r) the Agent’s and the Lenders’ receipt of the Agent Fee Letter and Blackstone Representative’s receipt of the Lender Fee Letter, and payment of Lender and Agent Expenses and other fees then due as specified in Sections 2.4 and 2.7 hereof;
(s) the Agent’s and the Lenders’ receipt of a certificate, dated the Closing Date and signed by a duly authorized officer Responsible Officer of the CompanyB▇▇▇▇▇▇▇, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowingthere is no Adverse Proceeding pending or, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the LendersKnowledge of the Credit Parties, as reasonably determined threatened, that, (x) contests the transactions contemplated by the AgentLoan Documents or (y) individually or in the aggregate, without the consent could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Agent Disclosure Letter (such consent not certificate to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect form and substance reasonably satisfactory to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(aBlackstone Representative), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) that Borrower and its Subsidiaries, on a consolidated basis, are Solvent;
(t) the Blackstone Representative’s receipt on or prior to the Closing Date of copies of each Material Contract identified as such in the Perfection Certificate;
(u) the Blackstone Representative shall have received customary payoff letters and lien release documents in form and substance reasonably satisfactory to the Blackstone Representative relating to all such Existing Indebtedness, which payoff documentation and releases will become effective pursuant to their terms;
(v) Borrower shall have obtained FDA approval of the Specified Representations shall be Biologics License Application (BLA) for AT-GAA (ATB200/AT2221) and the New Drug Application for miglustat and the Agent Agent’s receipt of true, correct and complete copies of the FDA approval letters;
(w) the Blackstone Representative’s receipt on or prior to the Closing Date of the Intercompany Subordination Agreement;
(x) the representations and warranties made by the Credit Parties in Section 4 of this Agreement and in the other Loan Documents are true and correct in all material respects, in each case immediately before and after giving effect unless any such representation or warranty is stated to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates relate to a given date or periodspecific earlier date, in which case such representation and or warranty shall be true and correct in all material respects as of the respective such earlier date or for the respective period, as the case may be); provided that to the extent (it being understood that any Specified Representation representation or warranty that is qualified by or subject as to a “material adverse effect”, materiality,” “material adverse changeMaterial Adverse Change,” or similar term or qualification, the same language shall be true and correct in all respects, in each case, on the date on which the Term Loan is made (both with and without giving effect to the Term Loan) or as of such earlier date, as applicable);
(y) there shall not have occurred (i) any Material Adverse Change or (ii) any Default or Event of Default; and
(iz) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company Agent’s and the Lenders Lenders’ receipt on or prior to the Closing Date of (x) the Borrowing Notice in accordance with the terms of Section 2.2(a)(ii), and (y) the Payment / Advance Form in each case in form and substance satisfactory to the Blackstone Representative. For purposes of determining compliance with the conditions specified in Section 3.1 on the Closing Date, and such notice each Lender that has signed this Agreement shall be conclusive and binding on all parties heretodeemed 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 written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Closing Date. The Each Lender’s obligation of each Lender to make its a Term Loan on the occasion of the Borrowing Closing Date is subject to the satisfaction condition precedent that Administrative Agent and each Lender shall have received (or waiver shall have consented to waive), in accordance with Section 9.05) of the following conditions:form and substance reasonably satisfactory to Administrative Agent):
(a) (i) the Term Notes, an IP Security Agreement (to the extent any Loan Party has acquired Intellectual Property since the Effective Date shall have occurredrequired to be included thereon in accordance with the terms of this Agreement), to the extent required hereunder or under the Pledge Agreement, all other Loan Documents, each duly executed by each Loan Party required to be party thereto, as applicable and (ii) an amendment to this Agreement substantially in the form attached hereto as Exhibit F to set forth, among other terms, the Term Loan Commitments of the Lenders on Schedule 1.1, the Interest Rate in Section 2.3(a) hereof, the amortization schedule set forth in Section 2.3(b) hereof, the Stated Maturity Date and the covenant levels for the Total Net Debt to Consolidated EBITDA Ratio and Consolidated Fixed Charge Coverage Ratio set forth in Section 7.15, each as reasonably determined by Administrative Agent in accordance with the terms hereof;
(b) receipt by updated Schedule 5.2 solely to add the Agent of the Notice of Borrowing Closing Date Acquisition Intellectual Property as required by Section 2.02owned Intellectual Property, which shall be in form, scope and substance satisfactory to Administrative Agent;
(c) receipt by a completed Perfection Certificate for each of the Agent of a certificate, substantially in the form of Exhibit D, dated Loan Parties (and assuming the Closing Date and signed by Acquisition has been consummated in accordance with the chief financial officer terms of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are SolventClosing Date Acquisition Documents);
(d) receipt by the Agent and the Arranger certified copies, dated as of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days date no earlier than thirty (30) days prior to the Closing Date, reimbursement of financing statement searches, as Administrative Agent shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or payment of all reasonable out-of-pocket expenses required to have been or, in connection with the Closing Date, will be reimbursed terminated or paid by the Company hereunder or thereunderreleased;
(e) receipt by certification that the Agent of Borrower is Solvent and Parent and its Subsidiaries, when taken as a certificatewhole, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;are Solvent.
(f) delivery of an intercompany note evidencing Indebtedness among the fact that the Acquisition shall be consummated substantially concurrently with the BorrowingLoan Parties, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect form and substance reasonably satisfactory to the Lenders, as reasonably determined by the Administrative Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) a payoff letter executed by each applicable financing source requested by Administrative Agent and required to be repaid on the fact that, immediately before and after giving effect Closing Date pursuant to the Transactions, no Event terms of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowingthis Agreement;
(h) a subordination agreement with each applicable financing source requested by Administrative Agent and required to be subordinated to the fact Obligations pursuant to the terms of this Agreement;
(i) evidence reasonably satisfactory to Administrative Agent that the insurance policies required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing lender’s loss payable and/or additional insured clauses or endorsements in favor of Administrative Agent, for the ratable benefit of the Lenders;
(j) the Organization Documents (or certificates of no change) and good standing certificates of each Loan Party certified by the Secretary of State (or equivalent agency) of such Loan Party’s jurisdiction of organization or formation, each as of a date no earlier than thirty (30) days prior to the Closing Date;
(k) a copy of resolutions of the governing body for each Loan Party evidencing approval of the Term Loans and other transactions evidenced by the Loan Documents;
(l) duly executed original officer’s certificates for each Loan Party certifying as to (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing incumbency of each Responsible Officer executing each Loan Document and (ii) each of the Specified Representations shall be true documents delivered pursuant to Section 3.2(j) and correct in all material respects3.2(k), in a form reasonably acceptable to Administrative Agent;
(m) duly executed legal opinions of counsel to each case immediately before and after giving effect to the Transactions on and Loan Party dated as of the date Closing Date in form and substance reasonably satisfactory to Administrative Agent;
(n) delivery of a duly authorized original officer’s certificate, executed by each Loan Party, (i) certifying to the satisfaction of the Borrowing conditions set forth in Section 3.2(e) and Section 3.2(r), (except ii) certifying to conditions set forth in Section 3.3(b), (c) and (d) hereof and (iii) certifying and attaching true, correct and complete copies of the executed Closing Date Acquisition Agreement (as in effect on the Effective Date, together with all amendments, supplements or other modifications thereto) and each other executed Closing Date Acquisition Document (as in effect on the Effective Date or in the case of any Specified Representation which expressly relates to a given date form in effect on the Effective Date, together with all amendments, supplements or period, other modifications thereto) (each such representation and warranty document shall be true in form, scope and correct substance satisfactory to Administrative Agent);
(o) receipt of confirmation by Administrative Agent that all costs, fees and expenses due to any affiliate of Administrative Agent under the Engagement Letter shall have been paid prior to the Closing Date or substantially contemporaneously with the funding of the Term Loan;
(p) payment to Administrative Agent, for the account of Administrative Agent and the Lenders, of L▇▇▇▇▇▇’ Expenses as specified in Section 2.4 hereof;
(q) delivery of (i) all material respects certificates (if any) evidencing any certified Equity Interests pledged to Administrative Agent pursuant to the Pledge Agreement, together with duly executed in blank, undated transfer powers attached thereto, and, for Pledged Uncertificated Stock (as defined in the Pledge Agreement), entry into an agreement to grant the Administrative Agent a perfected, first-priority Lien by “control” as defined in Section 8-106 of the UCC; and (ii) to the extent required by the Pledge Agreement, all Pledged Debt, together with duly executed in blank, undated allonges attached thereto;
(r) evidence that the Closing Date Acquisition shall be consummated, and such Closing Date Acquisition shall only be consummated, substantially contemporaneously with the funding of the Term Loan on the Closing Date in accordance with the terms of the Closing Date Acquisition Agreement (as in effect on the Effective Date or as otherwise amended, supplemented or otherwise modified with the written consent of the Administrative Agent) and each other Closing Date Acquisition Document (as in effect on the Effective Date or in form in effect as of the respective date Effective Date or for as otherwise amended, supplemented or otherwise modified with the respective period, as written consent of the case may beAdministrative Agent); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(is) evidence that the fact that there Common Stock Offering shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on all parties heretobeen consummated.
Appears in 1 contract
Conditions Precedent to Closing Date. The Each of the occurrence of the Closing Date and, to the extent Advances are to be made on the Closing Date, the obligation of each Lender to make its Loan an Advance on the occasion of the Borrowing Closing Date, is subject to the satisfaction (or waiver in accordance with Section 9.059.01) of the following conditions:
(a) the The Effective Date shall have occurred;.
(b) receipt by The absence of any Specified Event of Default on the Agent of the Notice of Borrowing as required by Section 2.02;Closing Date.
(c) receipt by On such date (x) all the Acquisition Agreement Representations and the Specified Representations are true or, if such representations or warranties do not include a materiality concept, true in all material respects and (y) the Administrative Agent shall have received a certificate of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer Responsible Officer of the Company, Borrower certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect as to the Transactionssatisfaction of this condition and, are Solvent;as applicable, to clauses (b), (f) and (g) of this Section 3.02.
(d) receipt by The Lead Arrangers, the Administrative Agent and the Arranger of Lenders shall have received all fees, reasonable out-of-pocket fees and expenses and other compensation due and required to be reimbursed or paid on or prior to the Closing Date under this Agreement, the Commitment Letter or pursuant to the Fee LetterLetter (or any similar letter) or hereunder and, including with respect to expenses, invoiced to the extent invoiced Borrower at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;.
(e) receipt by The Administrative Agent shall have received a customary opinion letter of Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇ (covering customary legal matters for an unsecured bank loan financing).
(i) Except as disclosed in the Agent of a certificate, dated Company SEC Documents (as defined in the Closing Date and signed by a duly authorized officer of the Company, confirming compliance Acquisition Agreement) filed or furnished with the conditions precedent United States Securities and Exchange Commission since December 31, 2013 (including exhibits and other information incorporated by reference therein) and publicly available prior to March 4, 2015 (but excluding any forward-looking disclosures set forth in clauses any “risk factors” section, any disclosures in any “forward-looking statements” section and any other disclosures included therein to the extent they are predictive or forward-looking in nature) or in the Company Disclosure Letter (fas defined in the Acquisition Agreement), from December 31, 2014 through the date of the Acquisition Agreement, there has not occurred any event, development, occurrence, or change that has had, or would reasonably be expected to have, individually or in the aggregate, an Acquired Business Material Adverse Effect and (ii) there not being any change, state of facts, condition, event, circumstance, effect, occurrence or development after the date of the Acquisition Agreement that would reasonably be expected to have, individually or in the aggregate, an Acquired Business Material Adverse Effect and that is continuing as of immediately prior to the expiration of the Offer (as defined in the Acquisition Agreement).
(g), (h) and (i) of this Section 3.02;
(f) the fact that the The Acquisition shall be consummated on the Closing Date (and, if an Advance is made on such date, substantially concurrently with the Borrowing, such Advance) in accordance with the Acquisition Agreement without giving effect to any amendments, modifications, supplements or waivers by the Borrower thereto or consents by the Borrower thereunder (without any amendmentincluding, modification or waiver thereof or any consent thereunder which is adverse in any material for the avoidance of doubt, with respect to the Lenders, conditions to the Offer (as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction defined in the amount of Acquisition Agreement) set forth in the Acquisition consideration shall not be deemed to be a modification which is Agreement) that are materially adverse in a material respect to the Lenders if or the Lead Arrangers without ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.’s prior written consent, it being understood and agreed that (i) such (x) any decrease is in the aggregate less than 10% cash portion of the consideration for the Acquisition consideration or (ii) the Commitments are reduced on that is accompanied by a dollar-for-dollar basis by reduction in commitments in respect of the amount of such Facility and (y) any decrease in the equity portion of the consideration for the Acquisition, shall, in each case, be deemed to be not materially adverse to the Lenders, (ii) any increase in the cash portion of the consideration for the Acquisition consideration));
(g) the fact that, immediately before and after giving effect together with any other increases since March 4, 2015, exceeds 5% of the purchase price shall be deemed to be materially adverse to the TransactionsLenders and (iii) any waiver or modification of the Minimum Condition (as defined in the Acquisition Agreement as in effect on March 22, no Event of Default under Section 6.01(a), (f) or (g2015) shall have occurred and be continuing on deemed to be materially adverse to the date of the Borrowing;Lenders.
(h) The Lead Arrangers shall have received for each of the fact Borrower and the Pharmacyclics Group (a) the Previously Received Financial Statements (receipt of which is hereby acknowledged on behalf of the Lead Arrangers by the Administrative Agent), (b) GAAP unaudited consolidated balance sheets and related statements of (in the case of the Borrower) earnings and (in the case of the Pharmacyclics Group) operations, comprehensive income and cash flows for each subsequent fiscal quarter ended at least 45 days before the Closing Date and (c) customary pro forma financial statements that shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended (the “Securities Act”) to the extent applicable in a registration statement of the Borrower’s debt securities under such Securities Act on Form S-1. The Borrower’s or Pharmacyclics Group’s, as the case may be, filing of any required unaudited financial statements with respect to the Borrower or the Pharmacyclics Group, as the case may be, on Form 10-Q, will satisfy the requirements under clause (b) of this Section 3.02(h).
(i) The Administrative Agent shall have received a solvency certificate from the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each Chief Financial Officer of the Specified Representations shall be true and correct Borrower in all material respectsthe form of Exhibit D hereto certifying that the Consolidated Group, in each case immediately before and on a consolidated basis after giving effect to the Transactions to take place on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates or prior to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders of the Closing Date, and such notice is solvent.
(j) To the extent Advances are to be made on the Closing Date, the Administrative Agent shall be conclusive and binding on all parties heretohave received a Notice of Borrowing in accordance with Section 2.02.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation of each Lender on the Closing Date to make its any Loan on the occasion of the Borrowing is requested to be made by it shall be subject to the satisfaction (or waiver in accordance with Section 9.05) of all of the following conditionsconditions precedent:
(a) the Effective Date The Administrative Agent (or its counsel) shall have occurred;received on or before the Closing Date from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) customary written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) receipt by The Administrative Agent (or its counsel) shall have received on or before the Agent Closing Date all Loan Documents and agreements, documents and instruments described in the List of Closing Documents attached hereto as Exhibit E hereto, each signed on behalf of the Notice of Borrowing as required by Section 2.02;parties thereto.
(c) receipt Except (a) as set forth in the Glimcher Disclosure Letter (as defined in the Merger Agreement), or (b) as disclosed in publicly available Glimcher SEC Filings (as defined in the Merger Agreement), filed with, or furnished to, as applicable, the Commission on or after January 1, 2013 and prior to the date of the Merger Agreement (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” and any disclosure of risks or other matters included in any “forward-looking statements” disclaimer or other statements that are cautionary, predictive or forward-looking in nature), between December 31, 2013 and the date of the Merger Agreement, except as contemplated by the Merger Agreement or as set forth in Section 4.8 of the Glimcher Disclosure Letter (as defined in the Merger Agreement), there has not been any effect, event, development or circumstance that, individually or in the aggregate with all other effects, events, developments and changes, would reasonably be expected to result in a Glimcher Material Adverse Effect (as defined in the Merger Agreement). Since the date of the Merger Agreement, there shall not have been any event, circumstance, change, occurrence, development or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Glimcher Material Adverse Effect.
(d) The Acquisition shall have been or shall be, substantially simultaneously with the initial Borrowings, consummated in accordance with the terms of the Merger Agreement (without giving effect to any amendments, modifications, supplements, waivers or consents after September 16, 2014 by the Company (including any change in the definition of Glimcher Material Adverse Effect or Sections 9.7, 9.11(c), 9.12 and 9.14 of the Merger Agreement or in the purchase price (excluding any adjustments provided for in the Merger Agreement)) that are materially adverse to the interests of the Lenders (in their capacities as such) and not approved by the Lead Arranger (which approval shall not be unreasonably withheld, conditioned or delayed)).
(e) The Company shall have delivered to the Administrative Agent a certificate as to the financial condition and solvency of Borrower and its subsidiaries (on a certificateconsolidated basis, after giving effect to the Transaction), substantially in the form of attached as Exhibit D, dated the Closing Date I hereto.
(f) All fees due and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect payable to the TransactionsAdministrative Agent, are Solvent;
(d) receipt by the Agent Lead Arranger and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required Lenders pursuant to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee LetterLetter and, including to the extent invoiced at least three Domestic two Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket and documented expenses required to be paid or reimbursed to the Administrative Agent and the Lead Arranger on or prior to the Closing Date pursuant to the Commitment Letter, shall have been paid or shall be paid from the proceeds of the Loans.
(g) To the extent requested at least seven Business Days prior to the Closing Date by the Company hereunder or thereunder;Lead Arranger, the Borrower shall have delivered the documentation and other information with respect to the Borrower to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, prior to the Closing Date.
(eh) receipt by The Lead Arranger shall have received (1) audited consolidated balance sheets and related statements of income and cash flows of the Agent of a certificate, dated Acquired Business for its most recent two fiscal years ended at least 90 days prior to the Closing Date and signed by a duly authorized officer (2) unaudited consolidated balance sheets and related statements of income and cash flows of the CompanyAcquired Business for each of its fiscal quarters ended after the close of its most recent fiscal year and at least 75 days prior to the Closing Date (but excluding the fourth quarter of any fiscal year). The Acquired Business’s filing of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, confirming compliance with in each case, will satisfy the conditions precedent set forth in requirements under clauses (f)1) or (2) as applicable, (g), (h) and of this paragraph.
(i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the The Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same Closing Date.
(j) The Merger Agreement Representations shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders respects as of the Closing Date, and such notice shall be conclusive and binding on all parties hereto.
Appears in 1 contract
Sources: 364 Day Bridge Term Loan Agreement (Washington Prime Group Inc.)
Conditions Precedent to Closing Date. The obligation closing of each Lender to make its Loan this Agreement shall occur on the occasion of date (the Borrowing is subject to the satisfaction (or waiver in accordance with Section 9.05“Closing Date”) of on which the following conditionsconditions precedent shall have been satisfied:
(a) the Effective Date The Administrative Agent (or its counsel) shall have occurred;received from each applicable party the following, each dated such day (unless otherwise specified):
(i) A counterpart of this Agreement and each Note (if requested by any Lender) signed on behalf of each party thereto.
(ii) A copy of the articles or certificate of incorporation (or equivalent Constituent Document) of the Borrower, certified as of a recent date by the Secretary of State of the state of organization of the Borrower, together with a certificate of such official attesting to the good standing of the Borrower.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of each officer of the Borrower who is authorized to sign this Agreement and the other Loan Documents on the Borrower’s behalf, (B) the by-laws (or equivalent Constituent Document) of the Borrower as in effect on the date of such certification, (C) that there have been no changes in the certificate of incorporation (or equivalent Constituent Document) of the Borrower from the certificate of incorporation (or equivalent Constituent Document) delivered pursuant to clause (ii) above and (D) the resolutions of the Board of Directors approving and authorizing the execution, delivery and performance of this Agreement.
(iv) An opinion of ▇▇▇▇▇▇ LLP, as special counsel to the Borrower, reasonably acceptable to the Administrative Agent.
(b) receipt by The Borrower shall have paid such fees as the Borrower shall have agreed to pay to any Joint Lead Arranger, any Lender or the Administrative Agent in connection herewith, including the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Administrative Agent, in connection with the negotiation, preparation, execution and delivery of the Notice Loan Documents, the extensions of Borrowing as required by Section 2.02;credit hereunder and the syndication of the credit facility provided hereby (to the extent such fees and expenses are due and statements for such fees and expenses have been delivered to the Borrower).
(c) receipt The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, as reasonably requested by the Agent Lenders.
(d) (i) No Default shall have occurred and be continuing on the Closing Date,(ii) the representations and warranties contained in Article 4 shall be accurate in all material respects on and as of the Closing Date (except to the extent any such representation or warranty (1) relates solely to an earlier date, in which case it shall be accurate in all material respects as of such earlier date, or (2) is qualified by materiality or #96301122v26 subject to a certificateMaterial Adverse Effect qualification, substantially in which case it shall be accurate in all respects) as if made on and as of such date, (iii) no injunction affecting the form execution, delivery or performance of Exhibit D, dated the Loan Documents shall have been issued and remain in effect on the Closing Date and signed by (iv) the chief financial officer Administrative Agent shall have received a certificate of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the CompanyBorrower, confirming compliance with dated the Closing Date, stating that each of the conditions precedent set forth in clauses (f), (g), (h) and (ii)-(iii) of this Section 3.02;3.01(d) have been satisfied.
(fe) evidence reasonably satisfactory to the fact Administrative Agent that all principal of and interest on any loans outstanding under, and all accrued fees under, the Acquisition shall be consummated substantially concurrently with the BorrowingExisting Credit Facility, and all fees then due in accordance with the Acquisition Agreement (without any amendmentfee letters dated November 30, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders2022, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct been paid in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effectfull. The Administrative Agent shall promptly notify the Company Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on all parties hereto. The Lenders that are parties to the Existing Credit Facility, constituting the “Required Lenders” under the Existing Credit Facility, and the Borrower agree that (i) the commitments under the Existing Credit Facility shall terminate automatically on the Closing Date without need for further action by any party to the Existing Credit Facility and (ii) all requirements of notice for any prepayment under the Existing Credit Facility necessary to satisfy the conditions stated in Section 3.01(e) or the termination of commitments pursuant to clause (i) above are hereby waived.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, the Closing Date shall not occur until and unless each Lender to make its Loan on the occasion of the Borrowing is subject to the satisfaction (or waiver in accordance with Section 9.05) and every one of the following conditionsconditions has been satisfied or waived, in Lender’s sole discretion:
(a) the Effective Date Borrower shall have occurred;delivered to Lender all documents required by Lender to be delivered on or before the Closing Date:
(b) Lender shall have received from Borrower current interim and, or fiscal year end financial statements, all updated pro-forma financial information, copies of all public filings and disclosures, evidence of receipt by the Agent of the Notice all necessary governmental approvals, required certifications, including, but not limited to, compliance with all laws, payment of Borrowing all taxes and satisfaction of all insurance requirements, and such legal opinions as may reasonably be required by Section 2.02Lender;
(c) receipt by the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are SolventNo Material Adverse Effect shall have occurred or shall exist;
(d) receipt by No Default or Event of Default shall have occurred and be continuing; and
(e) Borrower shall have delivered to Lender the Agent 2010 Term Loan Promissory Note and the Arranger Fourth Amendment to Revolving Loan Promissory Note, both in form and substance satisfactory to Lender.
(f) Borrower shall have delivered to Lender a mortgage modification in form and substance satisfactory to Lender and Lender’s local counsel, to be recorded in the State of all feesHawaii Bureau of Conveyances for the purpose of giving constructive notice of the existence of this Agreement, the extension of the Mortgage to secure the 2010 Term Loan Promissory Note, and the additional real property security for the Revolving Loan and the 2010 Term Loan as described in the mortgage modification.
(g) Borrower shall have obtained for Lender, at Borrower’s expense, such endorsements as Lender may require, in Lender’s sole discretion, to the existing lender’s policy of title insurance that insures the Mortgage.
(h) Borrower shall have reimbursed Lender for its reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under in connection with this Agreement, including title insurance premiums, recording fees and the Commitment Letter or the Fee Letterreasonable fees, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment charges and disbursements of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or local counsel for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; andLender.
(i) Borrower shall cause the fact that there shall not have occurredfollowing leases and license between International Air Service Company, since LTD as lessor and Mauna Loa Macadamia Nut Corporation as lessee and licensee to be subordinated to the Acquisition Agreement DateMortgage as amended:
i) Unrecorded Agricultural Lease dated September 21, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify 1981, as amended on November 28, 1983, by and between International Air Service Company, LTD, organized under the Company and the Lenders laws of the Closing DateState of California, “Lessor”, and such notice shall be conclusive Mauna Loa Macadamia Nut Corporation, a Hawaii corporation, “Lessee”, a memorandum thereof being recorded in Liber 15833 at Page 51, and binding on all parties heretoLiber 17510 at Page 120, State of Hawaii, Bureau of Conveyances;
ii) Unrecorded Agricultural Lease dated September 12, 1979, by and between International Air Service Company, LTD, “Lessor”, and Mauna Loa Macadamia Nut Corporation, “Licensee”, a memorandum thereof being recorded in Liber 13991 at Page 687, State of Hawaii, Bureau of Conveyances;
iii) Unrecorded Agricultural Lease dated September 12, 1979, by and between International Air Services Company, LTD, “Lessor”, and Mauna Loa Macadamia Nut Corporation, “Lessee”; a memorandum thereof being recorded in Liber 13991 at Page 680, State of Hawaii, Bureau of Conveyances; and
iv) Unrecorded Agricultural Lease dated June 24, 1983 by and between IASCO Farms, LTD, a California corporation, “Lessor”, and Mauna Loa Macadamia Nut Corporation, a Hawaii corporation, “Lessee”, a memorandum thereof being recorded in Liber 17134 at Page 701, State of Hawaii, Bureau of Conveyances.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation of each Lender to make its a Loan on the occasion of the Borrowing Closing Date is subject to the satisfaction (or waiver in accordance with Section 9.0510.02) of the following conditions:
(a) the The Effective Date shall have occurred;.
(b) receipt by the The Administrative Agent shall have received a certificate of the Notice of Borrowing Borrower confirming that the Merger Control Clearance Condition (as required by Section 2.02;defined in the Target Acquisition Agreement) has been satisfied.
(c) receipt by On the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer date of the Companyapplicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, certifying that the Company and its Subsidiariesif a Certain Funds Representation does not include a materiality concept, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;true in all material respects.
(d) receipt The Administrative Agent shall have received a copy of the notary letter entered into with the Dutch civil law notary relating to the closing of the Target Acquisition and financing of the Target Acquisition.
(e) The Target Acquisition shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in all material respects in accordance with the terms and conditions of the Target Acquisition Agreement (it being understood that substantially concurrently shall include the Target Acquisition being consummated no more than two Business Days after the initial Loan hereunder), without giving effect to (and there shall not have been) any modifications, amendments, consents or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders (it being understood and agreed that the following shall not be deemed to be materially adverse to the interests of the Lenders: (x) any increase in the purchase price funded with the issuance of any equity securities by the Borrower or any of its Subsidiaries; (y) any increase in the purchase price funded other than through the issuance of equity securities by the Borrower or any of its Subsidiaries of not more than 5.0%; and (z) any decrease in the purchase price of not more than 10.0%; provided that such decrease shall be allocated to ratably reduce the Commitments and any outstanding Tranche 1 Commitments (as defined in the Bridge Credit Agreement)), without the prior written consent of the Administrative Agent.
(f) All fees and other amounts due and payable by the Borrower and its Subsidiaries to the Joint Lead Arrangers, the Administrative Agent and the Arranger of all feesLenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid Date by the Company hereunder relevant person and to the extent such amounts are payable on or thereunder;
(e) receipt by the Agent of a certificate, dated prior to the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));Date.
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) The Administrative Agent shall have occurred and be continuing on the date received a Notice of the Borrowing;Borrowing in accordance with Section 2.03.
(h) The Administrative Agent shall have received a customary payoff letter with respect to, and reasonably satisfactory evidence that, all Existing Target Indebtedness shall be repaid in full and all security interests related thereto shall be terminated on or prior to the fact that Closing Date.
(i) the Acquisition Agreement Representation Condition The Administrative Agent shall not have occurred received a pro forma consolidated balance sheet and be continuing and (ii) each related pro forma consolidated statement of income of the Specified Representations shall be true Borrower and correct in all material respectsits Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, in each case immediately before and prepared after giving effect to the Transactions on and as if the Transactions had occurred as of the such date of the Borrowing (except in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Specified Representation which expressly relates to a given date Lender shall have any approval right as regards the form or period, such representation and warranty shall be true and correct in all material respects as contents of the respective date or for the respective period, as the case may bePro Forma Financials); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Administrative Agent shall promptly notify the Company Borrower and the Lenders of the Closing DateDate as soon as practicable upon its occurrence, and such notice shall be conclusive and binding on all parties heretobinding.
Appears in 1 contract
Sources: Loan Agreement (Moodys Corp /De/)
Conditions Precedent to Closing Date. The obligation of each Lender to make its Loan on the occasion of the Borrowing is subject to the satisfaction (or waiver in accordance with Section 9.05) of the following conditions:
(a) the Effective Date shall have occurred;
(b) receipt by the Agent of the Notice of Borrowing as required by Section 2.02;
(c) receipt by the Agent of a certificate, substantially in the form of Exhibit D, dated the Closing Date and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt by the Agent and the Arranger Arrangers of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowing;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on all parties hereto.
Appears in 1 contract
Conditions Precedent to Closing Date. Notwithstanding the execution and delivery of this Agreement by all parties hereto, the Original Existing Credit Agreement shall remain in full force and effect and shall not be amended hereby unless and until the Closing Date occurs. The effectiveness of the amendment and restatement of the Original Existing Credit Agreement to be effected by this Agreement, and the obligation of each Lender to make its any Revolving Advance, any Term Loan A Advance and any Swingline Advance, if any, on and after the Closing Date shall occur at the Closing Time on the occasion of the Borrowing is Closing Date and shall be subject to the satisfaction (or waiver in accordance with Section 9.05) of the following conditionsconditions precedent that:
(a) the Effective Date The Administrative Agent shall have occurredreceived certified copies of the respective certificates of incorporation and bylaws of the Borrower and its corporate Subsidiaries and the respective certificates of limited partnership and agreements of limited partnership for the partnership Subsidiaries;
(b) receipt The Borrower shall have demonstrated to the reasonable satisfaction of the Administrative Agent in its sole good faith discretion that all conditions to the closing of the Acquisition, the making of Bridge Loans under the Bridge Facility and the making of Other Term Loan A Advances and Term Loan B Advances under the New Credit Agreement shall occur or have been waived pursuant to Section 8.01 on or before the Closing Date (including payment of all amounts due under the Acquisition Documents), and that all transactions contemplated by the Agent Related Documents to be consummated on the closing date of the Acquisition will take place prior to or simultaneously with the transactions hereunder contemplated to take place on the Closing Date and that the cash portion of the purchase price for the Acquisition does not exceed $650 million (subject to post-closing purchase price adjustments contemplated by the Acquisition Agreement), provided that the cash portion of the purchase price may be increased (up to an aggregate maximum of $680 million (subject to post-closing purchase price adjustments contemplated by the Acquisition Agreement)) to the extent that after giving effect to the Acquisition and the other transactions occurring on the Closing Date, including such increase in the cash purchase price, the Debt to Operating Cash Flow Ratio is less than or equal to 6.85x, all of which is being funded solely with proceeds of the Advances (as defined in the New Credit Agreement) under the New Credit Agreement and the Bridge Loans and the Majority Lenders shall be satisfied in their sole good faith discretion with the terms and conditions of each of the Other Transaction Documents;
(c) The Borrower shall have paid or caused to be paid, or the Administrative Agent shall have received evidence satisfactory to it in its sole good faith discretion that on the Closing Date the Borrower shall pay, or cause to be paid, (i) all interest and commitment fees that are accrued but unpaid to the Closing Date under the Original Existing Credit Agreement (whether or not then payable under the terms thereof), (ii) all fees and expenses (if any) payable under Section 8.04 of the Original Existing Credit Agreement, (iii) all ---- accrued fees and expenses of the Administrative Agent, the Syndication Agents, the Co-Arrangers and the Lenders, including without limitation the arrangement fees payable under Section 2.06(a), participation fees payable under Section 2.06(b) and the administrative fees payable under Section 2.06(c), and (iv) all ------- fees and expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ in connection with the preparation, execution and delivery of this Agreement, the other Loan Documents and the consummation of the transactions contemplated hereby and thereby, in each case for which the Borrower has received a statement on or before the Closing Date;
(d) There shall not have been since December 31, 1999 any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the Borrower and its Subsidiaries, considered as a whole (but on a pro forma basis assuming consummation of the Acquisition);
(e) Except for the Disclosed Litigation, there shall exist no pending or threatened action, suit, investigation, litigation or proceeding in any court or before any arbitrator or governmental instrumentality which, in the reasonable opinion of the Lenders, could have a material adverse effect on the business, condition (financial or otherwise), operations, properties or prospects of the Borrower and its Subsidiaries, considered as a whole (but on a pro forma basis assuming consummation of the Acquisition), or which, in the reasonable opinion of the Majority Lenders, may adversely affect the legality, validity or enforce ability of this Agreement, any other Loan Document or any Related Document, the ability of any Loan Party to perform its obligations hereunder or thereunder, or the rights of any Lender hereunder or thereunder or the ability of any Lender to exercise such rights;
(f) All material governmental and third party consents and approvals necessary or, in the reasonable opinion of the Majority Lenders, desirable or appropriate in connection with the Closing Date Transactions shall have been obtained (without the imposition of any conditions other than conditions that have been satisfied or waived on or before the Closing Date) and shall be in effect and final and non-appealable (it being understood that all Federal governmental consents and approvals are material), and without limiting the generality of the foregoing the Administrative Agent shall have received evidence satisfactory to it that the FCC shall have granted its consent to the assignment of the ▇▇▇▇-TV station licenses to License Co. Sub, and such consent is in full force and effect and is a Final Order;
(g) BT Co. shall have received, in its capacity as Administrative Agent or Collateral Agent, as appropriate, the following, each effective on the Closing Date (unless otherwise indicated below), in form and substance reasonably satisfactory to it in such capacity and in sufficient copies for each Lender (except for the Notes and certificates and stock powers relating to Pledged Stock):
(1) A Notice of Borrowing as required by Section 2.02;
(c2.02(a) receipt by the Agent in respect ------- of a certificate, substantially in the form of Exhibit D, dated the Closing Date any Revolving Advance and signed by the chief financial officer of the Company, certifying that the Company and its Subsidiaries, on a consolidated and pro forma basis after giving effect to the Transactions, are Solvent;
(d) receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required Swingline Advance to be reimbursed or paid borrowed on the Closing Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced at least three Domestic Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(e) receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, confirming compliance with the conditions precedent set forth in clauses (f), (g), (h) and (i) of this Section 3.02;
(f) the fact that the Acquisition shall be consummated substantially concurrently with the Borrowing, in accordance with the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is adverse in any material respect to the Lenders, as reasonably determined by the Agent, without the consent of the Agent (such consent not to be unreasonably withheld or delayed) (it being agreed that any reduction in the amount of the Acquisition consideration shall not be deemed to be a modification which is adverse in a material respect to the Lenders if (i) such decrease is in the aggregate less than 10% of the Acquisition consideration or (ii) the Commitments are reduced on a dollar-for-dollar basis by the amount of such decrease in the Acquisition consideration));
(g) the fact that, immediately before and after giving effect to the Transactions, no Event of Default under Section 6.01(a), (f) or (g) shall have occurred and be continuing on the date of the Borrowingits delivery;
(h) the fact that (i) the Acquisition Agreement Representation Condition shall not have occurred and be continuing and (ii) each of the Specified Representations shall be true and correct in all material respects, in each case immediately before and after giving effect to the Transactions on and as of the date of the Borrowing (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects; and
(i) the fact that there shall not have occurred, since the Acquisition Agreement Date, any Acquired Entity Material Adverse Effect. The Agent shall promptly notify the Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on all parties hereto.
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