Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents as of the Closing Date;
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionExtension . The obligation of each any L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: :
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: :
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Domestic Borrower; ;
(ii) a Revolving Credit Note executed by each of the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note, and an Initial Term Note executed by the Domestic Borrower in favor of each Term Lender requesting a an Initial Term Note; ;
(A) the Post Closing Agreement, duly executed by each of the parties Collateral Documents or any amendments or modifications thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: to the extent required under local law to ensure the continuing validity and enforceability of such Collateral Document or to ensure the continuing security interests in the applicable assets (and the continuing perfection thereof) granted or purported to be granted pursuant to such Collateral Documents, including, without limitation, in the assets of the Domestic Borrower, the Foreign Borrower and the Foreign Guarantors and in the Equity Interests in the Foreign Borrower, Diodes Holdings UK Limited, Diodes Zetex Limited and Diodes Hong Kong, and all related confirmations, authorizing resolutions, legal opinions and such other agreements, documents, certificates, if anyfilings, notarizations, and recordations,
(B) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank (to the extent available in any non‑U.S. jurisdiction), in each case to the extent such Pledged Equity is certificated and has not currently held by previously been delivered to the Administrative Agent; and the Administrative Agent shall have received satisfactory evidence that the Liens in favor of the Administrative Agent on the equity interests of the Foreign Loan Parties required to be pledged have been validly created, are enforceable and have been perfected under the laws of each applicable jurisdiction,
(C) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable (or the foreign equivalent thereof) in order to perfect the Liens created under the Security AgreementCollateral Documents, covering the Collateral described in the Security AgreementCollateral Documents as well as UCC, Lien and Intellectual Property, charge, and other searches (to the extent available in any non‑U.S. jurisdiction) and other evidence satisfactory to the Administrative Agent that such Liens are the only Liens upon the Collateral, except Liens permitted hereunder,
(D) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, ,
(E) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreementthereby, the Account Control Agreements and the Securities Account Control Agreement and
(in each case, as defined in the Security AgreementF) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect or continue perfection of the Liens created under the Security Agreement Collateral Documents has been taken (including receipt of duly executed payoff letters, UCC-3 UCC‑3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements ;
(together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; ;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; ;
(vi) a favorable opinion of Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; ;
(vii) a favorable opinion of NautaDutilh New York P.C., local counsel to the Loan Parties in the Netherlands, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of ▇▇▇▇▇ & Overy LLP, local counsel to the Loan Parties in the United Kingdom, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of the Domestic Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Domestic Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) no action, suit, investigation, litigation or proceeding pending or, to the knowledge of either Borrower, threatened in any court or before any arbitrator or governmental instrumentality that in the Administrative Agent’s or Arrangers’ judgment could reasonably be expected to have a Material Adverse Effect;
(xii) annual audited financial statements of the Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended 2019;
(Cxiii) interim financial statements of the amount Domestic Borrower and its Subsidiaries on a consolidated basis described in Section 5.05(b);
(xiv) pro forma financial statements for the Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal period ending on March 31, 2020, including forecasts prepared by management of Indebtedness the Domestic Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Domestic Borrower and its Subsidiaries on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement;
(xv) certificates attesting to the Solvency of each Borrower and their respective Subsidiaries before and after giving effect to the financing under this Agreement and the transactions contemplated hereby, from the chief financial officer of the Domestic Borrower and from a Responsible Officer of the Foreign Borrower;
(xvi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xvii) the documentation and other information as to each Loan Party as requested by the Administrative Agent and each Lender in order to comply with requirements of the PATRIOT Act; and
(xviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, each L/C Issuer, the Swingline Lender or the Required Lenders reasonably may require.
(b) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents.
(c) The Borrowers shall have repaid Revolving Credit Loans, Swingline Loans and L/C Borrowings and/or Cash Collateralized the L/C Obligations (other than the L/C Borrowings) in an aggregate amount such that the Total Revolving Credit Outstandings do not exceed the Revolving Credit Facility in effect following the Closing Date, taking into account the instructions by the Domestic Borrower is permitted to incur make such transfers among the Revolving Credit Facility and the Term Facility as may be necessary to ensure that all Outstanding Amounts and Commitments are in accordance with the Applicable Percentages of the Lenders under the Senior Notes Documents relevant Facility and in accordance with this Agreement.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) The Domestic Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Domestic Borrower and the Administrative Agent).
(f) The Lenders shall have completed a due diligence investigation of the Borrowers, their respective Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as they shall have requested. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Conditions to all Credit Extensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and the representations and warranties contained in Section 5.24 shall only have effect on and following the Lite-On Acquisition Date;.
(b) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an Alternative Currency, such currency remains an Eligible Currency.
(e) There shall be no impediment, restriction, limitation or prohibition imposed under Law or by any Governmental Authority, as to the proposed financing under this Agreement or the repayment thereof or as to rights created under any Loan Document or as to application of the proceeds of the realization of any such rights. Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrowers shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
Appears in 1 contract
Sources: Credit Agreement (Diodes Inc /Del/)
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies (followed promptly by originals) facsimiles or “pdf” files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (if applicable), each dated as of the Closing Date (or, in the case of
(i) executed counterparts of certificates of governmental officials(A) this Agreement from Holdings and the Borrower, a recent date before (B) the Closing DateHoldings Guaranty from Holdings, (C) the Subsidiary Guaranty from each Subsidiary Guarantor, and each in form and substance satisfactory to (D) the Equal Priority Intercreditor Agreement from Holdings, the Borrower, the Administrative Agent and each of the Lenders: executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the First Lien Administrative Agent, each Lender and the Borrower; a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of ;
(ii) the Security Agreement, duly executed by Holdings, the Borrower and each Loan PartySubsidiary Guarantor, together with: (1) to the extent not delivered to the Existing First Lien Administrative Agent as bailee for the Administrative Agent pursuant to the Equal Priority Intercreditor Agreement, certificates, if any, representing the Pledged Equity referred to therein Interests accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the extent not currently held by the Administrative Collateral Agent, and (2) copies of proper Financing Statements in form appropriate financing statements, filed or duly prepared for filing under the Uniform Commercial Code of in all United States jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens on assets of Holdings, the Borrower and each Subsidiary Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause and (B3) above evidence that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant subject to the Security Agreement Perfection Exceptions) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement)Administrative Agent, and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “4) an Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence Party that all action owns intellectual property that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is required to be a partypledged in accordance with the Collateral Documents; such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a(iii) and (b) have been satisfied, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents as of the Closing Date[reserved];
Appears in 1 contract
Sources: Credit Agreement (V2X, Inc.)
Conditions Precedent to Credit Extensions. Section4.01. Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between the Borrower and the Administrative Agent:
(i) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or “pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date) ), and each in form accompanied by their respective required schedules and substance satisfactory other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, giving effect to the Administrative Agent and each of the Lenders: Transactions):
(1) executed counterparts of (A) this Agreement and from Holdings, the GuarantyBorrower, sufficient in number for distribution to the Administrative Agent, each Lender L/C Issuers and the Borrower; a Note executed by initial Lenders, (B) the Borrower in favor of Holdings Guaranty from Holdings and the Administrative Agent, (C) the Subsidiary Guaranty from each Lender requesting a Note; Loan Party (other than Holdings) and the Post Closing AgreementAdministrative Agent, duly executed by each of (D) the parties thereto; a reaffirmation of Intercompany Subordination Agreement and (E) the Perfection Certificate;
(2) the Security Agreement, duly executed by Holdings, the Borrower and each Loan PartySubsidiary Guarantor, together with: with (subject to Schedule 6.16):
(a) certificates, if any, representing the Pledged Equity referred Interests in the Borrower and, to therein the extent received by Holdings after Holdings’ use of commercially reasonable efforts to receive such certificates or otherwise without undue burden or expense, each wholly owned Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the extent not currently held by the Administrative Collateral Agent,
(b) copies of proper financing statements, proper Financing Statements in form appropriate filed or duly prepared for filing under the Uniform Commercial Code of in all United States jurisdictions that the Administrative Collateral Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens on assets of each Loan Party created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause and
(Bc) above evidence that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant subject to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent Perfection Exceptions) shall have been taken, completed or otherwise provided for in the Post Closing Agreement), and evidence that all other action that a manner reasonably satisfactory to the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements statements);
(3) an Intellectual Property Security Agreement, duly executed by the Collateral Agent and landlords’ and bailees’ waiver and consent agreements); each Loan Party that owns intellectual property security agreement supplements that is required to be pledged in accordance with the Security Agreement;
(together with 4) a Note executed by the Borrower in favor of each other intellectual property security agreement Lender requesting a Note reasonably in advance of the Closing Date;
(5) a Committed Loan Notice and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12a Letter of Credit Application, if applicable, in each case as amended, relating to the “Intellectual Property Security Agreement”), duly initial Credit Extension;
(6) a solvency certificate executed by each Loan Partythe chief financial officer or similar officer, together with evidence that all action that director or authorized signatory of Holdings (after giving effect to the Administrative Agent may deem necessary or desirable Transactions) substantially in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; form attached hereto as Exhibit G;
(7) such certificates of resolutions or other actiondocuments and certifications (including Organization Documents and, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party if applicable, good standing certificates) as the Administrative Agent may reasonably require evidencing to evidence (A) the identity, authority and capacity of each Responsible Officer thereof authorized to act of the Loan Parties acting as a Responsible Officer such in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as (B) that Holdings, the Administrative Agent may reasonably require to evidence that Borrower and each Loan Party Subsidiary Guarantor is duly organized or formed, and that the Borrower and each Guarantor of them is validly existingexisting and, to the extent applicable, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationstanding, except to the extent that failure to do be so qualified could not reasonably be expected to have a Material Adverse Effect; a favorable ;
(8) an opinion of ▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇▇ LLP, special New York counsel to Holdings, the Loan PartiesBorrower and the Subsidiary Guarantors, addressed to each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAgent; and
(9) a certificate signed by of a Responsible Officer of the Borrower certifying that the conditions specified condition set forth in Sections 4.02(aSection 4.01(d)(i)(A), 4.01(e), 4.01(f) and (b4.01(g) have been satisfied.
(ii) Holdings, that there has been no event the Borrower and the other Guarantors shall have provided the documentation and other information reasonably requested in writing at least ten business days prior to the Closing Date by the Arrangers as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, and a Beneficial Ownership Certification, in each case at least three business days prior to the Closing Date (or circumstance since such shorter period as the date Administrative Agent shall otherwise agree).
(iii) The Second Lien Facility Documentation required by the terms of the Audited Financial Statements that has had Second Lien Credit Agreement and the First Lien/Second Lien Intercreditor Agreement shall have been duly executed and delivered by each Loan Party thereto to the Second Lien Administrative Agent and shall be in full force and effect, and substantially contemporaneously with the funding of the Facilities, the Second Lien Facility shall be funded.
(iv) (i) (A) the representations and warranties of the Borrower and each other Loan Party contained in Article V or could any other Loan Document shall be true and correct in all material respects; and (B) the Refinancing shall have been, or shall concurrently with the initial funding of the Facilities be, consummated.
(1) All fees required to be paid on the Closing Date pursuant to this Agreement, the Engagement Letter, the Agency Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to this Agreement, the Engagement Letter and the Agency Fee Letter, to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably expected to haveagree) shall have been paid (which amounts may be offset against the proceeds of the Facilities).
(v) Since December 31, either individually or in the aggregate2018, a there shall not have occurred any Material Adverse Effect.
(vi) No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom on the Closing Date.
(vii) The Acquisition shall have been consummated or, substantially concurrently with the initial borrowing under this Agreement, shall be consummated, in whole or in part, with the proceeds of the Preferred Equity, the Term Loans and (C) the amount Second Lien Loans. Without limiting the generality of Indebtedness under the Loan Documents provisions of Section 9.03, for purposes of determining compliance with the Borrower is permitted to incur under the Senior Notes Documents conditions specified in this Section 4.01, each Lender as of the Closing Date;Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. (a) The obligation of each L/C Issuer of the Senior Commitment Party and each Lender the Junior Noteholders to make its initial Credit Extension a loan hereunder is shall be subject to satisfaction of the following conditions precedent: The Administrative Agent’s receipt :
(i) the aggregate amount requested for funding by the Senior Commitment Party and the amount requested for funding by the Junior Noteholders pursuant to Section 2.2(b) does not exceed the amount the Portfolio Manager reasonably expects will be required to purchase all Collateral Debt Obligations that the Issuer has entered into commitments to purchase (but which have not yet settled) less amounts standing to the credit of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer Principal Account at any such time and Principal Proceeds standing to the credit of the signing Loan Partycollection account (if any);
(ii) 50% of the Aggregate Draw Down Amount will be requested from the Junior Noteholders, each dated the Closing Date (orpro rata and pari passu in accordance with their respective Junior Note Commitment Amounts, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory an amount up to the Administrative Agent and each Junior Note Commitment Limit (such amount, the “Junior Note Required Draw Down Amount”);
(iii) the aggregate amount requested of the Lenders: executed counterparts Senior Commitment Party is no greater than the Aggregate Draw Down Amount minus the Junior Note Required Draw Down Amount (such amount, the “Senior Note Required Draw Down Amount”);
(iv) the Notice of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; Borrowing includes a Note executed certification by the Borrower in favor Portfolio Manager that (a) no Portfolio Manager Breach has occurred and (b) to its knowledge, all other Conditions of each Lender requesting a Note; the Post Closing Agreement, duly executed by each Accumulation have been satisfied as of the parties thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or loan with respect to the Security Agreement that purchased (but unsettled) Collateral Debt Obligations to which the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery proceeds of the certificates borrowing will be applied; and
(v) the Draw Date (x) is at least two Business Days following the date on which the Notice of title for applicable equipment Borrowing is delivered to the Senior Commitment Party and/or, as required by the Security Agreementapplicable, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) Junior Noteholders and (by) have been satisfiedwill not occur on or after December 24, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents as of the Closing Date;2016.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of Initial to Credit ExtensionExtensions on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial a Credit Extension hereunder on the Closing Date is subject only to satisfaction of the following conditions precedent: , except as otherwise agreed between the Holdings and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies pdf copies or other facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a Committed Loan Notice and, if applicable, a Letter of Credit Application, each of in accordance with the Lenders: requirements hereof;
(ii) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution Agreement;
(iii) each Collateral Document set forth on Schedule 1.01C required to be executed on or prior to the Administrative Agent, each Lender and the Borrower; a Note executed Closing Date by the Borrower in favor of each Lender requesting a Note; Loan Parties (as the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of the Security Agreementcase may be) as indicated on such schedule, duly executed by each Loan PartyParty thereto;
(iv) a copy of the Engagement Letter duly executed and delivered by Parent;
(v) a copy of an Accession Deed (as defined in the Existing Intercreditor Agreement) duly executed and delivered by each party thereto;
(vi) in the case of the Co-Borrower (i) a copy of the certificate or articles of incorporation, together with: certificatesincluding all amendments thereto, if anyof the Co-Borrower, representing certified as of a recent date by the Pledged Equity referred to therein accompanied by undated stock powers executed in blank Secretary of State of the jurisdiction of its organization, and instruments evidencing the Pledged Debt indorsed in blank certificates of good standing (to the extent not currently held by such concept exists) from such applicable Secretary of State, (ii) a certificate of the Administrative Agent, proper Financing Statements in form appropriate for filing under secretary or assistant secretary of the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, Co-Borrower dated on or before about the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of the Co-Borrower as in effect on the date of that certificate and at all times since a date prior to the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to resolutions described in clause (B) above below, (B) that name any Loan Party as debtor, together with copies attached thereto is a true and complete copy of such other financing statements, evidence resolutions duly adopted by the board of directors or similar governing body of the completion of all other actionsCo-Borrower authorizing the execution, recordings delivery and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery performance of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person is a party and the borrowings to be made by it hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of the Co-Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of the Co-Borrower; and (iii) a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (ii) above;
(vii) in the case of the Borrower (i) an electronically delivered extract from the Luxembourg Companies Register pertaining to the Borrower dated not earlier than one Business Day before the date of this Agreement, (ii) a copy of the up-to-date articles of incorporation, including all amendments thereto, of the Borrower, (iii) a copy of a certificate of non-registration of judgments (certificate de non inscription d’une décision judiciaire), issued by the Luxembourg Register of Commerce and Companies with regard to the Borrower dated on the date of this Agreement, and (iv) a certificate of an authorized signatory of the Borrower dated on or about the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of the Borrower as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of managers of the Borrower, the board of directors or managers or similar governing body of each such entity authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) a specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity;
(viii) In the case of the Dutch Loan Parties
(1) A copy of the articles of association (statuten) and deed of incorporation (oprichtingsakte) of each Dutch Loan Party, as well as an extract (uittreksel) from the Dutch Commercial Register (Handelsregister) of such Dutch Loan Party.
(2) A copy of a resolution of the board of managing directors of each Dutch Loan Party:
(A) approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and resolving that it executes the Loan Documents to which it is a party;
(B) if applicable, authorising a specified person or persons to execute the Loan Documents to which it is a party on its behalf; and
(C) confirming that there are no works councils with jurisdiction over the transactions contemplated by this Agreement.
(3) If applicable, a copy of the resolution of the board of supervisory directors of each Dutch Loan Party approving the resolutions of the board of managing directors referred to under (b) above.
(4) A copy of the resolution of the shareholder(s) of each Dutch Loan Party approving the resolutions of the board of managing directors referred to under (b) above.
(5) A specimen of the signature of each member of the board of managing directors of each Dutch Loan Party and, if applicable, each person authorised by the resolutions referred to in paragraph (b) sub (ii) and/or (iii) above in relation to the Loan Documents.
(ix) In the case of a Cyprus Loan Party:
(1) A copy of the constitutional documents (including memorandum and articles of association (in Greek and in English), certificate of incorporation, certificates of change of name (if any), certificate of directors and secretary, certificate of shareholders, certificate of registered office address, certificate of good standing and certificate of solvency) of the Cyprus Loan Party issued by the Cyprus registrar of companies and, in the case of the certificate of good standing and the certificate of solvency, dated as nearly as possible to the Closing Date.
(2) A copy of a resolution of the board of directors of the Cyprus Loan Party:
(A) approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and resolving that it execute the Loan Documents to which it is a party;
(B) authorising a specified person or persons to execute the Loan Documents to which it is a party on its behalf;
(C) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Loan Documents to which it is a party; and
(D) approving the Cyprus Law Pledge Amendment and Restatement Agreement (as defined in Schedule 1.01C).
(3) A copy of a resolution signed by all the holders of the issued shares in the Cyprus Loan Party approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party.
(4) A copy of the power of attorney (if any) issued by the Cyprus Loan Party in favour of the person or persons authorised by the resolution referred to in (2) above to sign the Loan Documents to which it is a party on its behalf.
(5) A specimen of the signature of each person authorised by the resolution referred to in paragraph (2) above.
(6) A certificate of the Cyprus Loan Party (signed by an authorised signatory) confirming that securing/guaranteeing such Credit Extension and the Loans would not cause any security, guarantee or other similar limit binding on the Cyprus Loan Party to be exceeded.
(7) An incumbency certificate from the secretary of the Cyprus Loan Party addressed to the Cyprus counsel for the Agents in a form acceptable to them;
(8) A copy of the power of attorney issued by the Cyprus Loan Party in favour of Holdings in relation to the matters set out in Section 1.10(c);
(9) A certificate of the Cyprus Loan Party (signed by an authorized signatory), attaching thereto copies of, inter alia, the documents referred to in paragraphs (ix)(1) to (ix)(8) certifying that each copy of such document relating to it specified in this Section 4.01 (ix) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement
(10) Evidence in the form of an extract from the register of charges of the Cyprus Loan Party, certified by its secretary, showing that particulars of each Collateral Document to which the Cyprus Loan Party is a party have been entered in the register of charges of the Cyprus Loan Party.
(x) in the case of a Loan Party incorporated or situated in the UK or the island of Guernsey, (i) a copy of the Organization Documents pertaining to each such entity and (ii) a certificate of an authorized signatory of each such entity dated on or about the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or written resolutions of the directors of each such entity approving the terms of, and the transactions contemplated by and authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) a specimen signature of each director or authorised signatory authorised to execute any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that the guaranteeing, borrowing or securing by it of amounts under the Loan Documents would not cause any limit binding on it to be exceeded, and (E) in respect of any Loan Party organized or situated in the island of Guernsey, a copy of its register of members with a note of the security created over the issued shares in favor of the Collateral Agent noted thereon;
(xi) in the case of an Australian Loan Party:
(1) a certified copy of the certificate of registration of the Australian Loan Party;
(2) a certified copy of the constitution of the Australian Loan Party;
(3) a certified copy of the board minutes of a meeting of the directors of the Australian Loan Party which:
(A) provides evidence of the directors’ decision for the Australian Loan Party to execute the Loan Documents (to which it is proposed to become a party; such documents ) (which, for this purpose, shall be taken to include the confirmation deed between, amongst others, each of the Australian Loan Parties and certifications as the Administrative Collateral Agent may reasonably require (the “Confirmation Deed”));
(B) provides evidence of the appointment of the attorney appointed to evidence that each execute the Loan Documents (to which the Australian Loan Party is duly organized or formedproposed to become a party) and the Confirmation Deed, if the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed are to be executed under power of attorney; and
(C) acknowledges that the Borrower Loan Documents (to which the Australian Loan Party is proposed to become a party) and each Guarantor the Confirmation Deed will benefit the Australian Loan Party;
(4) a certified copy of the sole member’s circulating resolution of the Australian Loan Party or a resolution of the members of the Australian Loan Party (as applicable) which resolves to authorize the Australian Loan Party’s execution of the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed;
(5) if the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed are to be executed under power of attorney, a certified copy of the power of attorney together with a certified extract of board minutes evidencing the appointment of the attorney appointed to execute the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed;
(6) a director’s certificate which (i) attaches the documents referred to in sub-paragraphs (1) to (5) (inclusive) above and (ii) certifies that:
(A) the Australian Loan Party has been duly incorporated and is validly existing;
(B) the Australian Loan Party has power to execute the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed;
(C) the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed do not contravene the Australian Loan Party’s constitution or cause a limitation on the Australian Loan Party’s powers or the powers of its directors to be exceeded;
(D) the Australian Loan Party benefits from executing the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed; and
(E) each of the documents attached to the certificate is correct, complete, in good standing full force and qualified to engage in business in each jurisdiction where its ownership, lease effect and has not been amended or operation superseded as at the date of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable certificate;
(xii) an opinion of from (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan PartiesParties and (ii) each local counsel listed on Schedule 4.01, in each case (A) dated on or about the date of this Agreement, (B) addressed to the Administrative Agent and each LenderAgent, as to the matters concerning the Loan Parties L/C Issuers and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectLenders, and (C) covering such customary matters (taking into account customary practice in non-U.S. jurisdictions) relating to the amount capacity of Indebtedness under the respective entities to execute Loan Documents and the Transactions as the Administrative Agent shall reasonably request;
(xiii) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, English law counsel to the Secured Parties (A) dated on or about the date of this Agreement, (B) addressed to the Administrative Agent, the L/C Issuers and the Lenders, and (C) covering such customary matters (taking into account customary practice in non-U.S. jurisdictions) relating to the enforceability of the Loan Documents and the Borrower is permitted Transactions as the Administrative Agent shall reasonably request;
(xiv) a fully executed version of the Existing Intercreditor Agreement, as amended and restated on or about the Closing Date;
(xv) a fully executed Mezzanine Facility Agreement, including an amendment or consent thereto entered into on or prior to incur under the Senior Notes Closing Date;
(xvi) the Original Financial Statements;
(xvii) Ancillary Facility Documents in effect as of the Closing Date;; and
(xviii) The agreed list of Approved Revolving Lenders.
(b) The Closing Fee and all fees and expenses due to the Administrative Agent, the Lead Arrangers, the Lenders and their Affiliates required to be paid on the Closing Date and (in the case of expenses) invoiced at least three (3) Business Days before the Closing Date (except as otherwise reasonably agreed by Holdings) shall have been paid from the proceeds of the initial funding under the Facilities, including fees pursuant to the Engagement Letter.
(c) Substantially concurrently with the initial Borrowing on the Closing Date, the Refinancing shall have been consummated.
(d) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, in each case to the extent requested by the Administrative Agent in writing at least five (5) Business Days prior to the date of this Agreement(1).
(e) The Administrative Agent shall have received a copy of the audited consolidated financial statements of Parent and its Restricted Subsidiaries for the fiscal year of the Parent ending March 31, 2014.
(f) The Administrative Agent shall have received a copy of the tax structure memorandum prepared by Ernst & Young LLP (the “Tax Structure Memorandum”).
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver by the Administrative Agent) of the following conditions precedent: precedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParties which are party thereto, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of (x) this Agreement bearing the signatures of each of the Borrower, the Administrative Agent and each in form Lender with commitments to make Loans as designated on Schedule 2.01 and substance satisfactory to (y) the Restatement Agreement bearing the signatures of each of the Borrower, the Administrative Agent and each of the lenders under the Existing Credit Agreement party thereto, which shall together constitute the “Required Lenders: ” (under and as defined in the Existing Credit Agreement);
(ii) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; a Ratification Agreement;
(iii) an original Note executed by the Borrower in favor of each new Lender requesting a Note; the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause ;
(Biv) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; ;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Loan Party Parties is duly organized or formed, validly existing and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization, lease or operation including, certified copies of properties or the conduct Organization Documents of its business requires such qualificationthe Loan Parties, except to certificates of good standing of the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; Loan Parties;
(vi) a favorable opinion of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel LLP in form and substance reasonably satisfactory to the Loan Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Lender, as ;
(vii) copies of the financial statements referred to in Sections 5.05(a) and 5.05(b) (to the matters concerning extent not previously delivered under the Loan Parties Existing Credit Agreement) and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Borrower (A) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) certifying that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) (x) attaching copies of all consents, licenses and approvals of Governmental Authorities, shareholders and other Persons required in connection with the amount execution, delivery and performance by each Loan Party and the validity against each Loan Party of Indebtedness under the Loan Documents to which it is a party and required in connection with the Borrower Loan Documents and the transactions contemplated thereby (including, without limitation, the expiration, without imposition of conditions, of all applicable waiting periods in connection with the transactions contemplated by the Loan Documents), and such consents, licenses and approvals shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required since the closing of the Existing Credit Agreement;
(viii) existing insurance certificates previously delivered to the Administrative Agent or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is permitted in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to incur under the Senior Notes Documents as assets and properties of the Loan Parties that constitutes Collateral;
(ix) to the extent not held by the Administrative Agent prior to the Closing Date or set forth on Schedule 6.13, all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Pledge Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent.
(x) to the extent not held by the Administrative Agent prior to the Closing Date, the original Intercompany Notes and all other notes and instruments required to be pledged pursuant to the terms of the Pledge Agreement, duly endorsed in blank by each relevant pledgor in favor of the Administrative Agent;
(xi) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Administrative Agent, dated a date reasonably near (but prior to) the Closing Date, listing all effective UCC financing statements, tax liens and judgment liens since the date of such searches in connection with the Existing Credit Agreement which name any Loan Party, as the debtor, together with copies of such financing statements (none of which (other than financing statements filed pursuant to the terms hereof in favor of the Administrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section 7.01(b), (c) or (j));
(xii) acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Borrower and each other Loan Party as the debtor and the Administrative Agent as the secured party, which such UCC financing statements have been filed, or have been delivered for filing, under the UCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement and the Pledge Agreement;
(xiii) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements); and
(xiv) such other assurances, certificates, documents, consents and waivers, estoppel certificates, or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Such financial, business and legal due diligence and information regarding the Borrower and its Subsidiaries as the Administrative Agent and its legal counsel shall have requested.
(c) The Engagement Letter and each Fee Letter shall be in full force and effect and the Borrower and each of the Loan Parties shall have complied with all of their respective obligations thereunder.
(d) The Administrative Agent shall have received certification, in form and substance reasonably satisfactory to the Administrative Agent, as to the financial condition and solvency (as described in Section 5.24) of the Borrower, individually, and the Loan Parties, taken as a whole from the chief financial officer of the Borrower.
(e) Any fees and expenses required to be paid on or before the Closing Date shall have been paid, including those fees and expenses set forth in the Engagement Letter and each Fee Letter.
(f) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Arrangers to the extent invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of fees, charges and disbursements of counsel to the Administrative Agent and the Arrangers as shall constitute its reasonable estimate of fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(g) Since December 31, 2018, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(h) The representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(i) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have repaid (i) all outstanding principal, together with all accrued and unpaid interest, in respect of the Term Loans (under and as defined in the Existing Credit Agreement), and (ii) all accrued and unpaid interest. commitment and letter of credit fees in respect of the Revolving Credit Loans (under and as defined in the Existing Credit Agreement) and Letters of Credit (under and as defined in the Existing Credit Agreement).
(j) Upon the reasonable request of any Lender made at least 10 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least 3 days prior to the Closing Date and (y) at least 5 days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Integra Lifesciences Holdings Corp)
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or “pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date) ), and each in form accompanied by their respective required schedules and substance satisfactory other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, giving effect to the Administrative Agent and each of the Lenders: Transactions):
(i) executed counterparts of (A) this Agreement and from Holdings, the GuarantyBorrower, sufficient in number for distribution to the Administrative Agent, each Lender L/C Issuers and the Borrower; a Note executed by initial Lenders, (B) the Borrower in favor of Holdings Guaranty from Holdings and the Administrative Agent, (C) the Subsidiary Guaranty from each Lender requesting a Note; Loan Party (other than Holdings) and the Post Closing AgreementAdministrative Agent, duly executed by each of (D) the parties thereto; a reaffirmation of Intercompany Subordination Agreement and (E) the Perfection Certificate;
(ii) the Security Agreement, duly executed by Holdings, the Borrower and each Loan PartySubsidiary Guarantor, together with: with (subject to Schedule 6.16):
(A) certificates, if any, representing the Pledged Equity referred Interests in the Borrower and, to therein the extent received by Holdings after Holdings’ use of commercially reasonable efforts to receive such certificates or otherwise without undue burden or expense, each wholly owned Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the extent not currently held by the Administrative Collateral Agent,
(B) copies of proper financing statements, proper Financing Statements in form appropriate filed or duly prepared for filing under the Uniform Commercial Code of in all United States jurisdictions that the Administrative Collateral Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens on assets of each Loan Party created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause and
(BC) above evidence that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant subject to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent Perfection Exceptions) shall have been taken, completed or otherwise provided for in the Post Closing Agreement), and evidence that all other action that a manner reasonably satisfactory to the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements statements);
(iii) an Intellectual Property Security Agreement, duly executed by the Collateral Agent and landlords’ and bailees’ waiver and consent agreements); each Loan Party that owns intellectual property security agreement supplements that is required to be pledged in accordance with the Security Agreement;
(together with iv) a Note executed by the Borrower in favor of each other intellectual property security agreement Lender requesting a Note reasonably in advance of the Closing Date;
(v) a Committed Loan Notice and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12a Letter of Credit Application, if applicable, in each case as amended, relating to the “Intellectual Property Security Agreement”), duly initial Credit Extension;
(vi) a solvency certificate executed by each Loan Partythe chief financial officer or similar officer, together with evidence that all action that director or authorized signatory of Holdings (after giving effect to the Administrative Agent may deem necessary or desirable Transactions) substantially in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; form attached hereto as Exhibit G;
(vii) such certificates of resolutions or other actiondocuments and certifications (including Organization Documents and, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party if applicable, good standing certificates) as the Administrative Agent may reasonably require evidencing to evidence (A) the identity, authority and capacity of each Responsible Officer thereof authorized to act of the Loan Parties acting as a Responsible Officer such in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as (B) that Holdings, the Administrative Agent may reasonably require to evidence that Borrower and each Loan Party Subsidiary Guarantor is duly organized or formed, and that the Borrower and each Guarantor of them is validly existingexisting and, to the extent applicable, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationstanding, except to the extent that failure to do be so qualified could not reasonably be expected to have a Material Adverse Effect; a favorable ;
(viii) an opinion of ▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇▇ LLP, special New York counsel to Holdings, the Loan PartiesBorrower and the Subsidiary Guarantors, addressed to each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAgent; and
(ix) a certificate signed by of a Responsible Officer of the Borrower certifying that the conditions specified condition set forth in Sections 4.02(aSection 4.01(d)(i)(A), 4.01(e), 4.01(f) and (b4.01(g) have been satisfied.
(b) Holdings, that there has been no event the Borrower and the other Guarantors shall have provided the documentation and other information reasonably requested in writing at least ten business days prior to the Closing Date by the Arrangers as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, and a Beneficial Ownership Certification, in each case at least three business days prior to the Closing Date (or circumstance since such shorter period as the date Administrative Agent shall otherwise agree).
(c) The Second Lien Facility Documentation required by the terms of the Audited Financial Statements that has had or could Second Lien Credit Agreement and the First Lien/Second Lien Intercreditor Agreement shall have been duly executed and delivered by each Loan Party thereto to the Second Lien Administrative Agent and shall be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectfull force and effect, and substantially contemporaneously with the funding of the Facilities, the Second Lien Facility shall be funded.
(Cd) (i) (A) the amount representations and warranties of Indebtedness under the Loan Documents the Borrower is permitted to incur under and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects; and (B) the Senior Notes Documents as Refinancing shall have been, or shall concurrently with the initial funding of the Closing Date;Facilities be, consummated.
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between the Parent Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or “pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date) and ), each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders: executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, and each Lender accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, giving effect to the Transactions): (i) executed counterparts of (A) this Agreement from Holdings and the BorrowerBorrowers, (B) the Holdings Guaranty from Holdings, (C) the Subsidiary Guaranty from each Subsidiary Guarantor and (D) the Intercompany Subordination Agreement; (ii) a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreementcustomary perfection certificate, duly executed by each of the parties theretoLoan Parties; a reaffirmation of (iii) the Security Agreement, duly executed by Holdings, the Borrowers and each Loan PartySubsidiary Guarantor, together with: with (subject to the last paragraph of this Section 4.01):
(1) certificates, if any, representing the Pledged Equity referred to therein Interests in each Borrower and each wholly owned Domestic Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the extent not currently held by Collateral Agent following pay-off of the Administrative AgentExisting Credit Agreements, (2) copies of proper Financing Statements in form appropriate financing statements, filed or duly prepared for filing under the Uniform Commercial Code of in all United States jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens on assets of Holdings, each Borrower and each Subsidiary Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause and (B3) above evidence that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant subject to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent Perfection Exceptions) shall have been taken, completed or otherwise provided for in the Post Closing Agreement), a
(b) The Arrangers and evidence that all other action that the Administrative Agent may deem necessary or desirable shall have received (i) audited consolidated balance sheets and the related consolidated statements of income and cash flows of the Parent Borrower as of and for the fiscal year ended December 31, 2019 and (ii) unaudited condensed consolidated balance sheets and the related consolidated statements of income of the Parent Borrower as of the end of and for the six month period ended June 30, 2020 and as of and for any fiscal quarter (other than the fourth fiscal quarter) ended at least 45 days prior to the Closing Date.
(c) [reserved.] (d)
(i) Holdings and the Borrowers shall have provided the documentation and other information reasonably requested in order writing at least ten days prior to perfect the Liens created Closing Date by the Arrangers as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12PATRIOT Act, in each case as amended, at least three business days prior to the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary Closing Date (or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party shorter period as the Administrative Agent may require evidencing shall otherwise agree) and (ii) to the identity, authority and capacity of each Responsible Officer thereof authorized to act extent any Borrower qualifies as a Responsible Officer “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in connection with this Agreement and a written notice to the other Loan Documents Parent Borrower at least 2 days prior to which the Closing Date (or such Loan Party is a party or is to be a party; such documents and certifications shorter period as the Administrative Agent may reasonably require shall otherwise agree), a Beneficial Ownership Certification in relation to evidence that each Loan Party is duly organized or formedthe Borrowers shall have received such Beneficial Ownership Certification (provided that, upon the execution and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct delivery by such Lender of its business requires such qualificationsignature page to this Agreement, except the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) the extent that failure to do so could not reasonably be expected to Refinancing shall have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPbeen, counsel to or shall concurrently with the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer initial funding of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfiedFacilities be, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents as of the Closing Date;consummated.
Appears in 1 contract
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Conditions Precedent to Credit Extensions. Section 1. 0a Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between the Borrower and the Administrative Agent:
(i) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or “pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date) ), and each in form accompanied by their respective required schedules and substance satisfactory other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, giving effect to the Administrative Agent and each of the Lenders: Transactions):
(1) executed counterparts of (A) this Agreement and from Holdings, the GuarantyBorrower, sufficient in number for distribution to the Administrative Agent, each Lender L/C Issuers and the Borrower; a Note executed by initial Lenders, (B) the Borrower in favor of Holdings Guaranty from Holdings and the Administrative Agent, (C) the Subsidiary Guaranty from each Lender requesting a Note; Loan Party (other than Holdings) and the Post Closing AgreementAdministrative Agent, duly executed by each of (D) the parties thereto; a reaffirmation of Intercompany Subordination Agreement and (E) the Perfection Certificate;
(2) the Security Agreement, duly executed by each Loan PartyHoldings, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existingSubsidiary Guarantor, in good standing and qualified together with (subject to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents as of the Closing Date;Schedule 6.16):
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Conditions Precedent to Credit Extensions. Conditions The obligations of Initial Credit Extension. The obligation of each L/C Issuer and each Lender the Lenders to make its initial Credit Extension Loans hereunder on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 13.02) of the following conditions precedent: :
(a) The Administrative Agent’s receipt Agent shall have received, dated as of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date, (i) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇▇, special counsel to for the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties Borrower and the Loan Documents Guarantors, substantially in the form attached hereto as Exhibit G-1; (ii) a legal opinion of ▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinger & ▇▇▇▇▇▇▇▇▇, special New Jersey counsel for J. Crew Inc., a Guarantor, substantially in the Required Lenders may reasonably requestform attached hereto as Exhibit G-2; (iii) a certificate signed by legal opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Borrower and the Guarantors, substantially in the form attached hereto as Exhibit G-3; and (iv) a Responsible Officer legal in-house opinion of the General Counsel of the Borrower certifying and the Guarantors, substantially in the form attached hereto as Exhibit G-4; provided that the conditions specified in Sections 4.02(aopinions delivered pursuant to clauses (ii) and (iv) shall be in a form reasonably satisfactory to the Lenders.
(b) The Administrative Agent shall have been satisfiedreceived, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents dated as of the Closing Date;, a Secretary’s Certificate of the Borrower and the Guarantors substantially in the form attached hereto as Exhibit I, attaching (i) copies of the organizational documents of the Borrower and each Guarantor executed and delivered by the Borrower and each Guarantor, as applicable, and, to the extent applicable, certified by the appropriate governmental official; (ii) executed incumbency certificates of the officers of such Person executing the Credit Documents to which it is a party; (iii) resolutions of the governing body of the Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and (iv) a good standing certificate from the applicable governmental authority of each of the Borrower and Guarantors’ jurisdiction of incorporation, organization or formation dated a recent date prior to the Closing Date.
(c) The Administrative Agent shall have received, dated as of the Closing Date, an Officer’s Certificate of the Borrower and the Guarantors substantially in the form attached hereto as Exhibit J stating that, as of the Closing Date, the conditions specified in Section 9.02(f) and Section 9.02(g) have been satisfied.
(d) The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses required to be reimbursed or paid by the Borrower under the Credit Documents.
(e) The Borrower shall have executed and delivered the Loan Notes and Loan Guarantees in favor of the Lenders who have committed to make Loans (or affiliates of such Lenders designated by them) in accordance with each such Lender’s Pro Rata Share of such Loans.
(f) The representations and warranties set forth in Article 8 shall be true and correct in all material respects on and as of the date specifically referred to within Article 8, except that the representations and warranties provided in Section 8.01(a), (b), (c), (d), (e), (f), (g) (other than the representations and warranties set forth in clause (iii) thereof), (i) and (k) shall be true and correct in all material respects as of the Closing Date.
(g) There shall be no Default or Event of Default existing under this Agreement other than any Default or Event of Default resulting from failure by the Borrower or any of its Restricted Subsidiaries to comply with the provisions described under Section 4.03, Section 4.04 or Section 4.14.
(h) The Lenders shall have received UCC financing statements with respect to the Collateral to be filed on the Closing Date, which shall be reasonably acceptable to the Lenders. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Senior Subordinated Loan Agreement (J Crew Group Inc)
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between the Parent Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or “pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date) and ), each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders: executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, and each Lender accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, giving effect to the Transactions): (i) executed counterparts of (A) this Agreement from Holdings and the BorrowerBorrowers, (B) the Holdings Guaranty from Holdings, (C) the Subsidiary Guaranty from each Subsidiary Guarantor and (D) the Intercompany Subordination Agreement; (ii) a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreementcustomary perfection certificate, duly executed by each of the parties theretoLoan Parties; a reaffirmation of (iii) the Security Agreement, duly executed by Holdings, the Borrowers and each Loan PartySubsidiary Guarantor, together with: with (subject to the last paragraph of this Section 4.01):
(1) certificates, if any, representing the Pledged Equity referred to therein Interests in each Borrower and each wholly owned Domestic Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the extent not currently held by Collateral Agent following pay- off of the Administrative AgentExisting Credit Agreements, (2) copies of proper Financing Statements in form appropriate financing statements, filed or duly prepared for filing under the Uniform Commercial Code of in all United States jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens on assets of Holdings, each Borrower and each Subsidiary Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause and (B3) above evidence that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant subject to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent Perfection Exceptions) shall have been taken, completed or otherwise provided for in the Post Closing Agreement), and evidence that all other action that a manner reasonably satisfactory to the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreementsstatements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “iv) an Intellectual Property Security Agreement”), duly executed by each Loan Party, together Party that owns intellectual property that is required to be pledged in accordance with evidence that all action that the Administrative Agent may deem necessary or desirable Security Agreement; (v) a Note executed by the Borrowers in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers favor of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as Lender requesting a Responsible Officer Note reasonably in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents as advance of the Closing Date;
Appears in 1 contract
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Conditions Precedent to Credit Extensions. Section 4.01. Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between the Borrower and the Required Lenders:
(a) The Administrative Agent’s receipt , the Ally Representative and the Blackstone Credit Representative shall have received all of the following, each of which shall be originals or telecopies (followed promptly by originals) facsimiles or “pdf” files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date) and ), each in form and substance reasonably satisfactory to the Administrative Agent Blackstone Credit Representative, and each of accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Lenders: Borrower and its Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender from Holdings and the Borrower; a Note executed by , (B) the Borrower in favor of each Lender requesting a Note; Holdings Guaranty from Holdings, (C) the Post Closing Subsidiary Guaranty from the Subsidiary Guarantors, (D) the Intercompany Subordination Agreement, duly executed by each of (E) the parties thereto; a reaffirmation of perfection certificate and (F) the Fee Letters;
(ii) the Security Agreement, duly executed by the Borrower and each Loan PartyGuarantor, together with: with (subject to the last paragraph of this Section 4.01):
(1) certificates, if any, representing the Pledged Equity referred Interests, to therein the extent received by the Borrower after Borrower’s use of commercially reasonable efforts to receive such certificates or otherwise without undue burden or expense, in each wholly owned Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the extent not currently held by the Administrative Collateral Agent,
(2) copies of proper financing statements, proper Financing Statements in form appropriate filed or duly prepared for filing under the Uniform Commercial Code of in all United States jurisdictions that the Administrative Agent Blackstone Credit Representative may deem reasonably necessary or desirable in order to perfect and protect the Liens on assets of the Borrower and each Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause and
(B3) above evidence that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant subject to the Security Agreement Perfection Exceptions) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken Blackstone Credit Representative (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreementsstatements); intellectual property security agreement supplements ;
(together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “iii) an Intellectual Property Security Agreement”), duly executed by each Loan PartyParty that owns intellectual property that is required to be pledged in accordance with the Security Agreement;
(iv) a Note executed by the Borrower in favor of each Lender requesting a Note reasonably in advance of the Closing Date;
(v) a Committed Loan Notice, together with evidence that all action that to be delivered to the Administrative Agent may deem necessary Agent, the Ally Representative and the Blackstone Credit Representative at least five (5) Business Days prior to the Closing Date, relating to the initial Credit Extension;
(vi) a solvency certificate executed by the chief financial officer or desirable similar officer, director or authorized signatory of the Borrower (after giving effect to the Transactions) substantially in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; form attached hereto as Exhibit G;
(vii) such certificates of resolutions or other actiondocuments and certifications (including Organization Documents and, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party if applicable, good standing certificates) as the Administrative Agent Blackstone Credit Representative may reasonably require evidencing to evidence (A) the identity, authority and capacity of each Responsible Officer thereof authorized to act of the Loan Parties acting as a Responsible Officer such in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as (B) that the Administrative Agent may reasonably require to evidence that Borrower and each Loan Party Guarantor is duly organized or formed, and that the Borrower and each Guarantor of them is validly existingexisting and, to the extent applicable, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationstanding, except to the extent that failure to do be so qualified could not reasonably be expected to have a Material Adverse Effect; ;
(viii) a favorable customary legal opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel to the Loan PartiesBorrower and the Guarantors, addressed to each Secured Party, in form and substance reasonably satisfactory to the Blackstone Credit Representative and (B) if applicable, local counsel reasonably acceptable to the Blackstone Credit Representative in each jurisdiction where any of the Loan Parties is incorporated or organized, addressed to each Secured Party, in form and substance reasonably satisfactory to the Blackstone Credit Representative; and
(b) The Blackstone Credit Representative, the Ally Representative and the Administrative Agent shall have received unaudited consolidated balance sheets and the related consolidated statements of income and cash flows of Holdings and its Subsidiaries as of September 30, 2020.
(c) The Blackstone Credit Representative, the Ally Representative, the Administrative Agent and each Lender, as the other Lenders shall have received from the Borrower and the Guarantors all documentation and other information reasonably requested in writing at least ten (10) days prior to the matters concerning Closing Date by the Loan Parties Blackstone Credit Representative, the Ally Representative and the Loan Documents Administrative Agent as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Required Lenders Administrative Agent shall otherwise agree).
(d) The Refinancing shall have been, or shall concurrently with the initial funding of the Facilities be, consummated.
(e) All fees required to be paid on the Closing Date pursuant to this Agreement, the Fee Letters and any other arrangements with the Administrative Agent and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to this Agreement or any other written agreement with Blackstone Credit, to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably request; a certificate signed by a Responsible Officer agree) shall have been paid (which amounts may be offset against the proceeds of the Borrower certifying that Initial Term Loans). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in Sections 4.02(a) and (b) have been satisfiedthis Section 4.01, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents each Lender as of the Closing Date;Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (KLDiscovery Inc.)
Conditions Precedent to Credit Extensions. Conditions The effectiveness of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to the satisfaction or waiver of the following conditions precedent: :
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) or electronic copies (following promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orif any, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders: executed Agent:
(i) counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to duly executed by each Borrower, the Administrative Agent, each Lender the Required Lenders under and as defined in the DIP Credit Agreement and the Borrower; Required Lenders under and as defined in the Prepetition Credit Agreement;
(ii) a Note executed by the relevant Borrower in favor of each Lender requesting that has requested a Note; the Post Closing Agreement, duly executed by each Note at least two Business Days in advance of the parties thereto; a reaffirmation of the Security AgreementClosing Date;
(iii) each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan PartyParty thereto, together with: :
(1) certificates, if any, representing the Pledged Equity referred to therein therein, to the extent required therein, accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions blank; and
(2) evidence that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or desirable otherwise provided for in order a manner reasonably satisfactory to perfect the Liens created thereby including Administrative Agent;
(iv) the delivery of the certificates of title for applicable equipment as required by the Security Intercreditor Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amendedAgent, the “Intellectual Property Security Agreement”), duly executed by Second Lien Agent and each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; Party party thereto;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents party on the Closing Date and certifications as with appropriate insertions and attachments, including the Administrative Agent may reasonably require to evidence that certificate of incorporation (or equivalent thereof) of each Loan Party that is duly organized or formed, a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party and that the Borrower and each Guarantor is validly existing, in a long form good standing and qualified to engage in business in certificate (or equivalent thereof) for each Loan Party from its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable organization;
(vi) opinion of from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New York counsel to Holdings substantially in the form of Exhibit F;
(vii) except as set forth in Section 6.16, evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan PartiesDocuments has been obtained and is in effect and, addressed to where applicable, that the Administrative Agent and each Lenderhas been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to such liability and property insurance as to which the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may Administrative Agent shall have reasonably requestrequested to be so named; and
(viii) a certificate signed by a Responsible Officer of the Borrower Company certifying that compliance with the conditions specified set forth in Sections 4.02(aparagraphs (k) and (l) of Article IV.
(b) The Administrative Agent shall have received the results of recent lien searches (or the equivalent thereof in foreign jurisdictions) conducted in the jurisdictions in which the Loan Parties are organized (to the extent available), and such search shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 7.01 or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent or arrangements reasonably satisfactory to the Administrative Agent that have been satisfiedmade to have such liens discharged promptly following the Closing Date.
(c) The Lenders and the Administrative Agent shall have received payment in full in cash of all costs, that there has been no event or circumstance since fees and expenses due and payable (including those required to be paid to such Lenders hereunder and under the date of DIP Credit Agreement and the Prepetition Credit Agreement) and invoiced before the Closing Date.
(d) The Lenders shall have received (i) the Audited Financial Statements and Unaudited Financial Statements (ii) the Pro Forma Balance Sheet and (iii) projections through June 30, 2014, in form reasonably satisfactory to the Administrative Agent, accompanied by a certificate of a Responsible Officer of the Company stating that such projections are based on estimates, information and assumptions believed by management of the Company to be reasonable on the Closing Date and that to his or her best knowledge, such Responsible Officer (not in his or her individual capacity, but solely as a Responsible Officer) has had no reason to believe that such projections are incorrect or could misleading in any material respect (it being understood and agreed that the projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Responsible Officer and that no assurance can be given that any of the projections will be realized, and that such projections are not a guarantee of financial performance and actual results may differ from the projected results and such differences may be material).
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Company, in form and substance reasonably expected satisfactory to havethe Administrative Agent, either individually certifying that (i) no Default or Event of Default (as defined in the aggregateDIP Credit Agreement) exists and is continuing under the DIP Credit Agreement immediately prior to the termination thereof and (ii) the Company and its Subsidiaries are in compliance with the financial covenants set forth in Sections 7.10 and 7.16 of the DIP Credit Agreement, a Material Adverse Effectimmediately prior to the termination of the DIP Credit Agreement, in each case to the extent applicable.
(f) After giving pro forma effect to the Reorganization Plan, the conversion or continuation of the Loans, as applicable, and the borrowing of the Second Lien Loans, on the Closing Date (i) Liquidity of the Company and its Subsidiaries shall not be less than the minimum Liquidity required to be maintained pursuant to Section 7.10(c) of the DIP Credit Agreement as of the end of the last Business Day prior to the Closing Date, and (Cii) the aggregate principal amount of Indebtedness under the Loans and the Second Lien Term Loans shall not exceed $[ ], and the Company shall have provided to the Administrative Agent reasonably satisfactory support for such calculations, and the Administrative Agent shall have received a certificate of a Responsible Officer of the Company, in form and substance reasonably satisfactory to the Administrative Agent, certifying compliance with the conditions set forth in this paragraph (f).
(g) The Bankruptcy Court shall have entered an order confirming the Reorganization Plan, which order (the “Confirmation Order”) (i) shall confirm a Reorganization Plan that is substantially consistent with the Restructuring Support Agreement, which Reorganization Plan has been accepted by Class 3 as designated thereunder, (ii) shall authorize the Facility and (iii) shall be in full force and effect and not have been reversed, modified, amended, stayed or vacated and shall not be subject to a motion to stay or subject to appeal or petition for review, rehearing or certiorari, and the period for appealing the Confirmation Order shall have elapsed. The Effective Date shall have occurred (and all conditions precedent thereto as set forth in the Confirmation Order shall have been satisfied (or shall be concurrently satisfied) or waived by the Required Lenders).
(h) The Restructuring Support Agreement shall have been in full force and effect from the execution thereof to the Effective Date.
(i) The Second Lien Term Loan Documents shall contain terms that conform to the Borrower is permitted Restructuring Support Agreement and are otherwise reasonably satisfactory to incur the Administrative Agent, and the Administrative Agent shall have received reasonably satisfactory evidence that the conditions to the effectiveness of the Second Lien Term Loan Documents shall have been (or shall substantially concurrently be) satisfied or waived in accordance with their terms.
(j) The Administrative Agent shall have received at least three days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Senior Notes Documents Patriot Act, requested by such Person.
(k) The representations and warranties of the Company and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects as of the Closing Date;; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(l) No Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension Loans hereunder is subject to satisfaction of the following conditions precedent: precedent prior to the Back Stop Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated a date on or prior to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: :
(i) executed counterparts of this the Collateral Agreement from the Borrower and each Guarantor together with (w) Uniform Commercial Code financing statements for the GuarantyBorrower and each Guarantor in appropriate form for filing with the Secretary of State of each applicable jurisdiction and (x) stock certificates and stock powers in favor of the Administrative Agent with respect to all certificated Equity Interests pledged thereunder to the extent required by the Collateral Agreement, sufficient (y) all other agreements and instruments required to be delivered in number for distribution order to provide the Administrative Agent, or perfect the Administrative Agent’s security interest in, the Collateral described in Annex I to the Commitment Letter, (z) an executed Mortgage in appropriate form for recording with respect to each Lender Mortgaged Property (and any surveys, title insurance and, to the extent required by law, flood insurance, requested by the Administrative Agent with respect to such Mortgage Property); provided that, to the extent any Collateral (other than the pledge and perfection of the security interests in the capital stock of wholly-owned domestic Subsidiaries held by the Loan Parties (to the extent required by the Collateral Agreement) and other assets pursuant to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) is not provided on the Closing Date after the Borrower has used commercially reasonable efforts to do so, the delivery of such Collateral shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered after the Closing Date pursuant to Section 6.11;
(ii) lien searches with respect to each Loan Party in such jurisdictions as may be reasonably requested by the Administrative Agent;
(iii) a copy of the Offer Document and the Borrower; initial press release announcing the Offer;
(iv) a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause ;
(Bv) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as the Administrative Agent may reasonably require to evidence that ;
(vi) a certificate of good standing for each Loan Party is duly organized or formed, and that from its jurisdiction of organization;
(vii) a certificate signed by the Chief Financial Officer of the Borrower certifying as to the solvency of the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except Subsidiaries (on a consolidated basis) after giving effect to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; Transactions and the incurrence of all indebtedness related thereto;
(viii) a favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇& ▇▇▇▇ LLP, counsel to the Loan Parties, and local counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the customary matters concerning the Loan Parties and the Loan Documents as Documents.
(b) The Acquisition Agreement shall have not been amended or modified in any respect that is materially adverse to the Required Lenders may reasonably request; a certificate signed by a Responsible Officer without the consent of the Lead Arrangers (which consent shall not be unreasonably withheld). The conditions to the completion of the Offer (as defined in the Acquisition Agreement) set forth in the Acquisition Agreement shall have been satisfied in all material respects in accordance with the Acquisition Agreement without any waiver by the Borrower certifying that is materially adverse to the Lenders unless the Lead Arrangers shall have consented to such waiver, which consent shall not be unreasonably withheld (it is understood and agreed that any amendments or waivers to the conditions numbered 8 (material adverse change) and 9 (no materially inaccurate disclosures) shall be deemed materially adverse to the Lenders). Notwithstanding the foregoing, this condition shall be deemed to be satisfied on the Closing Date if the terms of the Acquisition Agreement (as it may have been amended as permitted above) do not permit the Borrower to withdraw the Offer on such date.
(c) The Offer shall have been accepted to such an extent that the Borrower becomes the owner of shares representing more than 90% of the outstanding shares of the Target on a fully diluted basis.
(d) All accrued fees and expenses of the Administrative Agent and the Lead Arrangers (including the fees and expenses of counsel for the Administrative Agent and the Lead Arrangers and local and special counsel for the Administrative Agent and the Lead Arrangers) shall have been paid. The Borrower shall have paid all items then due and payable under the Fee Letter.
(e) The Major Representations shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(f) No Major Default shall be continuing, or would result from such proposed Loan or from the application of the proceeds thereof.
(g) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof. Any Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(aclauses (b), (c), (e) and (bf) have been satisfied, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, satisfied on and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents as of the Closing Date;.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01. Conditions of Precedent to Initial Credit Extension. The obligation effectiveness of each L/C Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent: :
(a) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) ), and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders: Agent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; a Note Agreement;
(ii) Notes executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause Notes;
(Biii) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, equivalent action and incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require Borrower evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party or is to be a party; such ;
(iv) documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and evidencing that the Borrower and each Guarantor is validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; organization;
(v) a certificate signed by a Responsible Officer of the Borrower certifying certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, that (B) that, other than as publicly disclosed in the Form 10-K of the Borrower for the fiscal year ended December 31, 2023, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and ; (C) the amount current Debt Ratings and (D) that there are no actions, suits, investigations or proceedings pending or, to the knowledge of Indebtedness the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(vi) customary opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) evidence that the Existing Credit Agreement has been or concurrently with the Effective Date is being terminated (other than those terms therein that are expressly stated to survive termination or repayment in full); and
(viii) a solvency certificate from the treasurer or other financial officer of the Borrower substantially in the form of Exhibit I hereto.
(b) All accrued and invoiced fees and expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have been paid, to the extent invoiced at least three (3) Business Days prior to the Effective Date.
(c) The Administrative Agent shall have received (i) at least 3 Business Days prior to the Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case, to the extent requested by the Administrative Agent at least 10 days prior to the Effective Date, and (ii) at least 3 Business Days prior to the Effective Date, to the extent the Borrower qualifies as a “legal entity customer” under the Loan Documents Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower, to the extent requested by the Administrative Agent at least 10 days prior to the Effective Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. The Administrative Agent shall notify the Borrower is permitted to incur under and the Senior Notes Documents as Lenders of the Closing occurrence of the Effective Date;, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section 1. 0a Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of each L/C Issuer and each Lender the Lenders to make its the initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent: , except as otherwise agreed between Parent and the Administrative Agent:
(i) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies (followed promptly by originals) facsimiles or “pdf” files unless otherwise specified, each properly and duly executed by a Responsible Officer of the signing Loan PartyParty or Holdings, as applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date 120 before the Closing Date or, in the case of the certificate of good standing with respect to Holdings to be delivered under paragraph (v) below, not more than 30 days prior to the Closing Date) ), and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect the Loan Parties, giving effect to the Transactions and Liens under Closing Date Collateral Documents), in form each case except as specified on Schedule 6.16:
(1) executed counterparts of (A) this Agreement from the Parent, the Borrower, the Administrative Agent, the Collateral Agent and substance satisfactory to the initial Lenders and (B) the Guaranty from the Isle of Man Loan Party, the U.S. Loan Parties, the English Loan Parties, the Administrative Agent and each of the Lenders: executed counterparts of this Collateral Agent and (C) the Intercompany Subordination Agreement from Holdings, the Parent, the U.S. Loan Parties, the English Loan Parties, the Administrative Agent and the Guaranty, sufficient in number for distribution to Collateral Agent;
(2) the Administrative Agent, each Lender and the Borrower; a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing AgreementDate Collateral Documents, duly executed by each of the parties Loan Parties thereto; a reaffirmation of , Holdings and the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Collateral Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order as applicable;
(3) a Committed Loan Notice relating to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension;
(4) a solvency certificate executed by the chief financial officer or similar officer, listing all effective financing statements filed director or authorized signatory of Parent (after giving effect to the Transactions) substantially in the jurisdictions referred form attached hereto as Exhibit F;
(5) such certificates of good standing or status (to in clause the extent that such concepts exist) from the applicable secretary of state (Bor equivalent authority) above that name any of the jurisdiction of organization or incorporation of each Loan Party as debtor, together with copies of such other financing statements, evidence of and Holdings incorporated in the completion of all other actions, recordings and filings of U.S. or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement Cayman Islands (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by applicable);
(6) a copy of the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt constitutional documents of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each U.S. Loan Party, together with evidence that each English Loan Party, the Isle of Man Loan Party and Holdings, being, in the case of Holdings, its certificate of incorporation, all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such its certificates of incorporation on change of name, if any, and its memorandum and articles of association;
(7) the register of directors, the register of officers and the register of mortgages and charges of Holdings;
(8) copy of a resolution of the board of directors (or board of managers or other equivalent body) of Holdings, the Isle of Man Loan Party, each U.S. Loan Party and each English Loan Party (x) approving the terms of and the transactions contemplated by the Loan Documents to which it is a party and resolving that it execute the Loan Documents to which it is a party; (y) authorizing a specified person or persons to execute each Loan Document to which it is a party on its behalf; and (z) authorizing a specified person or persons on its behalf, to sign and/or dispatch all documents and notices (including any Committed Loan Notice, except in the case of Holdings) to be signed and/or dispatched by it under or in connection with the Loan Documents to which it is a party;
(9) a copy of a resolution of the shareholders of the Isle of Man Loan Party and each English Loan Party (other than the Parent), approving the terms of, and the transactions contemplated by the Loan Documents to which it is a party;
(10) certificates of customary resolutions or other customary action, incumbency certificates and/or other customary certificates of Responsible Officers of the Isle of Man Loan Party, each U.S. Loan Party, each English Loan Party as the Administrative Agent may require and Holdings evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party or Holdings is a party or is to be a party; party on the Closing Date (including specimen signatures of each such Responsible Officer) and certifying (i) that the documents referred to in paragraphs (v) to (ix) above are true, correct and certifications complete, and in full force and effect and have not been 121 amended or superseded since the date of this Agreement and (ii) solely with respect to any English Loan Party, that the borrowing, guaranteeing and/or securing, as appropriate, the Administrative Agent may reasonably require Initial Dollar Term Loans would not cause any borrowing, guaranteeing, securing or similar limit binding on it to evidence that each be exceeded;
(11) a certificate of the registered agent of the Isle of Man Loan Party is duly organized or formed, in the agreed form addressed to ▇▇▇▇▇▇▇ (Isle of Man) LLC and the Collateral Agent to be dated no earlier that the Borrower date this Agreement, together with a certified copy of the register of directors, members and charges of the Isle of Man Loan Party;
(12) the following legal opinions: (A) a customary legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in respect of the capacity and authority of each Guarantor is validly existingU.S. Loan Party and the enforceability of any Loan Document governed by New York law, (B) a customary legal opinion of Milbank LLP in good standing respect of the capacity and qualified to engage authority of any English Loan Party and the enforceability of any Loan Document governed by English law, (C) a customary legal opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Cayman) LLP in business in each jurisdiction where its ownership, lease or operation respect of properties or the conduct capacity and authority of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have Holdings and (D) a Material Adverse Effect; a favorable customary legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP(Isle of Man) LLC in respect of the capacity and authority of the Isle of Man Loan Party;
(13) a certificate of a Responsible Officer of Parent certifying that the conditions set forth in Section 4.01(c) and 4.01(e) have been satisfied; and
(14) evidence that all actions, counsel recordings and filings of or with respect to the Closing Date Collateral Documents required in order to perfect and protect the Liens created thereby (subject to the Perfection Exceptions) shall have been taken, completed or otherwise provided for in a customary manner.
(ii) The Borrower, the other U.S. Loan PartiesParties and the English Loan Parties shall have provided, addressed at least three (3) Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree), the documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations as has been reasonably requested in writing by each of the Administrative Agent and the Collateral Agent at least ten (10) Business Days prior to the Closing Date.
(iii) The representations and warranties of Holdings, Borrower and each Lender, other U.S. Loan Party and each English Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects (provided that any representation and warranty that is qualified as to “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)).
(iv) All fees required to be paid on the matters concerning Closing Date pursuant to this Agreement, the Loan Parties Fee Letters and reasonable out-of-pocket expenses required to be paid on the Loan Documents Closing Date pursuant to this Agreement, to the extent invoiced in reasonable detail at least five Business Days prior to the Closing Date (or such later date as the Required Lenders Borrower may reasonably request; a certificate signed by a Responsible Officer agree) shall have been paid (which amounts may be offset against the proceeds of the Borrower certifying that Initial Dollar Term Loans).
(v) No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom on the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.02(a) and (b) have been satisfiedthis Section 4.01, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents each Lender as of the Closing Date;Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Coupang, Inc.)
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Credit Extensionto the Closing Date. The Closing Date and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject only to the satisfaction of the following conditions precedent: :
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and subject, in each in form and substance satisfactory case, to the Administrative Agent and each terms of the Lenders: last paragraph of this Section 4.01:
(i) executed counterparts of this Agreement, the Security Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; Guaranty Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note; Notes;
(iii) searches of filings made under the Post Closing AgreementUCC, duly executed by or other applicable Law, in each case in the jurisdiction of the parties thereto; a reaffirmation formation of the Security Agreement, duly executed by each Loan Party, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank Party and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held each other jurisdiction reasonably deemed appropriate by the Administrative Agent;
(iv) such UCC financing statements or similar documents as are necessary, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral in the United States;
(v) all jurisdictions that certificates evidencing any certificated Equity Interests pledged to the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect pursuant to the Security Agreement that Agreements together with duly executed in blank, undated stock powers attached thereto;
(vi) searches of ownership of, and Liens on, United States intellectual property registrations and applications owned by each Loan Party in the Administrative Agent may deem necessary or desirable appropriate United States governmental offices;
(vii) executed notices of grant of security interest in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as form required by the Security AgreementAgreements as are necessary, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement)Administrative Agent’s reasonable discretion, and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under Administrative Agent’s security interest in the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); United States intellectual property security agreement supplements registrations and applications of the Loan Parties;
(together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such viii) updated customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party to replace the corresponding such certificates as of the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; such documents and certifications as the Administrative Agent may reasonably require to Effective Date;
(ix) customary evidence that each Loan Party is duly organized or formed, validly existing and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease of organization or operation formation;
(x) customary opinions of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, Parties addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; ;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a4.01(b), 4.01(f), 4.01(g) and (b4.01(h) have been satisfied, that there has been no event or circumstance since ;
(xii) a Solvency Certificate signed by the date chief financial officer of the Audited Borrower;
(xiii) a perfection certificate in the form attached hereto as Exhibit J and signed by a Responsible Office of the Borrower; and1
(xiv) copies of (A) for the Borrower (1) GAAP audited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for the three most recent fiscal years ended at least 90 days prior to the Closing Date and (2) GAAP unaudited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for each subsequent fiscal quarter (the “Interim Financial Statements Statements”) ended at least 45 days before the Closing Date (and the corresponding period in the prior year), in each case, which financial statements shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended (subject, in the case of unaudited interim financial statements, to normal year end audit adjustments), and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3, and (B) for the Company (1) GAAP (except as may be indicated therein or in the notes thereto) audited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for the three most recent fiscal years ended at least 90 days prior to the Closing Date and (2) GAAP (except as may be indicated therein or in the notes thereto and except as permitted by the SEC on Form 8-K, Form 10-Q or any successor or like form under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) unaudited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for each subsequent fiscal quarter ended at least 45 days before the Closing Date (and the corresponding period in the prior year), in each case, which financial statements shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended (subject, in the case of unaudited interim financial statements, to normal, recurring year end audit adjustments and except, in the case of the unaudited interim financial statements, as permitted by Rule 10-01 of Regulation S-X under the Exchange Act), and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided, however that the filing of the required financial statements on Form 10-K or Form 10-Q within the time periods required thereby will satisfy the requirements under clauses (A) and (B) above; and
(xv) pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of end of the most recent fiscal quarter period for which financial statements have been delivered pursuant to paragraph (xiv)(A) above, and for the most recent fiscal year and each subsequent fiscal quarter period for which financial statements have been delivered pursuant to paragraph (xiv)(A) above, in each case prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the income statement).
(b) Substantially concurrently with the Closing Date, all obligations under the Borrower’s Existing Credit Agreement shall have been repaid in full (other than contingent indemnification obligations for which no claim or demand has had yet been made), and all commitments thereunder shall have been terminated. 1 NTD: To be deleted upon receipt of perfection certificate.
(c) The Administrative Agent and the Lenders shall have received at least three (3) Business Days prior to the Closing Date 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, to the extent requested by the Administrative Agent or could any such Lender in writing to the Borrower at least ten (10) Business Days prior to the Closing Date.
(d) At least three (3) Business Days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have delivered to each Lender that so requests a Beneficial Ownership Certification in relation to the Borrower.
(e) The Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be reasonably expected paid on or prior to havethe Closing Date pursuant to the Fee Letters or hereunder concurrently with the initial Credit Extension hereunder; provided that if invoices for such expenses are not received at least two (2) Business Days prior to the Closing Date, either then the payment thereof shall not be a condition to the Closing Date.
(f) The Finisar Acquisition shall be consummated substantially concurrently with the initial Credit Extension hereunder in accordance with the Merger Agreement in all material respects, and the Merger Agreement shall not have been amended or modified in any respect that is materially adverse to the Lenders or the Arrangers, without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), and no condition shall have been waived or consent granted, in each case, in any respect that is materially adverse to the Lenders or the Arrangers, without each Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that (i) any decrease in the purchase price of the Acquisition shall be deemed not materially adverse to the Lenders and the Arrangers to the extent such decrease is less than 15% of the initial purchase price and applied to reduce the Term Facilities on a dollar-for-dollar (and pro rata) basis, (ii) any increase in the purchase price of the Finisar Acquisition that is not funded with equity or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers and (iii) any amendment, modification, waiver or consent with respect to the definition of “Company Material Adverse Effect” in the Merger Agreement shall be deemed to be materially adverse to the Lenders and the Arrangers).
(g) Since November 8, 2018, there shall not have been any “Change” (as defined in the Merger Agreement as in effect on November 8, 2018) that, individually or in the aggregate, aggregate has had or would reasonably be expected to have a Company Material Adverse EffectEffect (as defined in the Merger Agreement as in effect on November 8, 2018) that is continuing.
(h) The Specified Merger Agreement Representations shall be true and (C) the amount of Indebtedness under the Loan Documents the Borrower is permitted to incur under the Senior Notes Documents correct in all material respects. The Specified Representations shall be true and correct in all material respects as of the Closing Date (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 any representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such date.
(i) The Administrative Agent shall have received Schedules 1.01, 5.13, 5.21, 6.19, 7.01, 7.02, 7.03, 7.04, 7.05, 7.08, 7.09, 10.02 and 10.06 in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Administrative Agent and Lenders agree that such schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Effective Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (it being understood and agreed that any such items disclosed in the Borrower’s Form 10-K or 10-Q or the Company’s Form 10-K or 10-Q with the SEC prior to the Effective Date shall be deemed satisfactory to the Required Lenders).
(j) The Effective Date shall have occurred. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. It is understood and agreed that for purposes of the availability of the Facilities on the Closing Date;, to the extent any security interest in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office or the delivery of stock certificates evidencing equity interests in (x) the Borrower’s U.S. Subsidiaries (other than the Company and the Company’s U.S. Subsidiaries) and (y) the Company, and to the extent provided by the Company on the Closing Date after use of commercially reasonable efforts, any of the Company’s U.S. Subsidiaries) is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, the provision of such perfected security interest(s) shall not constitute a condition precedent under this Section 4.01 but shall be required to be delivered no later than ninety (90) after the Closing Date (or such later date agreed to by the Administrative Agent) pursuant to arrangements to be mutually agreed.
Appears in 1 contract
Sources: Credit Agreement (Ii-Vi Inc)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: :
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: :
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; ;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note; the Post Closing Agreement, duly ;
(iii) executed by each of the parties thereto; a reaffirmation counterparts of the Security Agreement, duly executed by each Loan Partythe Borrower, together with: certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the :
(A) copies of (1) Uniform Commercial Code financing statement amendments in proper form for filing with the office of all jurisdictions that the Administrative Agent may deem necessary or desirable District of Columbia Recorder of Deeds and the California Secretary of State and (2) the relevant form(s) as applicable for filing with the Registrar of Companies of Bermuda in order to perfect proper form for filing with the Liens created under the Security AgreementRegistrar of Companies of Bermuda, each covering the Collateral described in the Security Agreement, completed requests ,
(B) results of lien searches for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed filings in the jurisdictions referred to in clause (BSection 4.01(a)(iii)(A) above that name any Loan Party the Borrower as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement and
(in each case, as defined in the Security AgreementC) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); intellectual property security agreement supplements ;
(together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case as amended, iv) the “Intellectual Property Security Pledge Agreement”), duly executed by each Loan PartyGuarantor, together with evidence that the original share certificates evidencing all action that of the Administrative Agent may deem necessary or desirable shares of the Borrower owned by the Guarantor, and corresponding share transfer forms duly executed in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates blank;
(v) certified copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; ;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, incorporated and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in Bermuda, including without limitation certificates of compliance issued by the Registrar of Companies of Bermuda for each jurisdiction where its ownershipLoan Party, lease or operation of properties or the conduct of its business requires such qualification, except dated a date close to the extent date of this Agreement, stating that failure to do so could not reasonably be expected to have a Material Adverse Effect; a favorable opinion of each Loan Party is duly incorporated and in good standing under the Companies ▇▇▇ ▇▇▇▇ of Bermuda;
(vii) favorable opinions of (1) ▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, (2) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, special Bermuda counsel to the Loan Parties, and (3) appropriate local counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; ;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower and the Guarantor certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) a duly completed Compliance Certificate as of the last day of the respective fiscal quarters of the Borrower and the Guarantor ended on June 30, 2018, signed by Responsible Officers of the Borrower and the Guarantor;
(Cxi) the amount of Indebtedness under evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained, is in effect and contains endorsements naming the Administrative Agent, on behalf of the Lenders, as a joint assured and/or co-loss payee, as the case may be, under such insurance;
(xii) evidence that all filings, recordations and searches necessary or desirable to perfect the Lien on any property granted to or held by the Administrative Agent under any Loan Document shall have been completed, and that all related filing and recording fees and taxes shall have been duly paid;
(xiii) a Borrowing Base Certificate duly certified by a Responsible Officer of the Borrower is permitted relating to incur the initial Credit Extension;
(xiv) evidence that the ABN Revolving Credit Facility and Union Bank Term Loan Facility have been, or concurrently with such Credit Extension are being terminated, all amounts owing by the Borrower under the Senior Notes Documents ABN Revolving Credit Facility and Union Bank Term Loan Facility shall have been, or concurrently with such Credit Extension are being, repaid, and all Liens securing obligations under the ABN Revolving Credit Facility and Union Bank Term Loan Facility have been, or concurrently with such Credit Extension are being, released or assigned; and
(xv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(i) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Administrative Agent shall have completed a due diligence investigation of the Guarantor, the Borrower and their respective Subsidiaries in scope, and with results, satisfactory to the Administrative Agent and shall have been given such access to the management, records, books of account, contracts and properties of the Guarantor, the Borrower and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing persons and businesses as they shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employees, the annual (or other audited) financial statements of the Guarantor, the Borrower and their respective Subsidiaries for the fiscal years ended 2015, 2016 and 2017, interim financial statements of the Guarantor, the Borrower and their respective Subsidiaries dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Administrative Agent’s due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date;); and no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding the Guarantor, the Borrower or their respective Subsidiaries or the transactions contemplated hereby after June 30, 2018 that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and nothing shall have come to the attention of the Administrative Agent or the Lenders to lead them to believe that the transactions contemplated hereby will have a Material Adverse Effect.
(e) No action, suit, investigation or proceeding is pending or, to the knowledge of the Guarantor or the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(f) All interest and fees accrued under the Existing Credit Agreement through the Closing Date shall have been paid in full by the Borrower, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(g) To the extent that the Borrower or Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have delivered to each Lender that so requests, a Beneficial Ownership Certification.
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