Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Revolving Loans and the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”): (a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default; (ii) executed counterparts of this Agreement and the Guaranty; (iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date; (iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with: (A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; (B) [Reserved]; and (C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; (v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date; (vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1; (vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2; (viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M; (ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named; (x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; (xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and (xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers. (b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility). (c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement. (d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes. (e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect. (f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto. (g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements. (h) The Arrangers shall have received the Pro Forma Financial Statements. (i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date. (k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect. (l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000. (m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement. (n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.
Appears in 2 contracts
Sources: Abl Credit Agreement (99 Cents Only Stores LLC), Credit Agreement (99 Cents Only Stores)
Conditions Precedent to Initial Borrowing. The obligations obligation of the Lenders Investor to make Revolving Loans and a Term Loan Advance on the obligations occasion of any Issuer the Initial Borrowing pursuant to Issue Letters of Credit shall, in each case, Section 2.02 shall be subject to the satisfaction (or due waiver by the Investor in accordance with Section 12.1 of each writing) of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which precedent before or concurrently with such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):Initial Borrowing:
(a) The Administrative Agent’s receipt Investor shall have received on or before the day of the Initial Borrowing the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Investor and (except for the Note) in sufficient copies for the Investor and, to the extent requested by the Investor:
(i) The Note, registered in the name of and payable to the Investor and its registered assigns in the amount of the Commitment;
(ii) The certificate of designations to the articles of incorporation of the Company to reflect such powers, preferences and rights in respect of the Series A Shares as the Investor shall require, and such certificate of designations shall have been duly filed with the Secretary of State of the State of Nevada;
(iii) One (1) or more certificates, duly executed by the Company, representing the number of duly and validly issued Series A Shares issuable to the Investor pursuant to Section 2.11(a);
(iv) the Registration Rights Agreement, duly executed and delivered by the Company to the Investor;
(v) The Pledge Agreement, duly executed by the Company, together with the stock certificates of Blue Fin, accompanied by a stock power or other instrument of transfer with respect thereto, duly endorsed in blank;
(vi) The Collateral Security Agreement, duly executed by the Company and each Subsidiary thereof, together with:
(A) a completed Perfection Certificate, dated the Effective Date, duly executed by a senior officer of the Company and Blue Fin, together with all attachments contemplated thereby, including UCC, judgment and tax lien searches; and
(B) evidence of the filing of UCC termination statements in respect of all Liens, if any, reflected on the lien search report attached to the Perfection Certificate, dated the Effective Date, to the extent such Liens are not permitted to be suffered pursuant to the terms of the Transaction Documents;
(vii) A separate deposit account control agreement, in such form as shall be reasonably acceptable to the Investor, in respect of each bank deposit account maintained by a Transaction Party, executed by the Investor, such Transaction Party, and the applicable depository institution (each, as amended, a “Deposit Account Control Agreement”), together with one (1) or more lockbox agreements, in form and substance reasonably acceptable to the Investor;
(viii) With respect to each item of Owned Real Property as of the Effective Date (other than the Excluded Property), a Mortgage, duly authorized and executed by the applicable Transaction Party, in form for recording in the recording office of each jurisdiction where the Owned Real Property to be encumbered thereby is situated, in favor of the Investor, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Investor) to create a Lien under applicable law, all of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
Investor, which Mortgage and other instruments create and/or maintain (iupon recordation of such instruments) a Notice of Borrowing in accordance with first priority Lien on such Owned Real Property other than the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any DefaultPermitted Encumbrances;
(iiix) executed counterparts With respect to each item of this Agreement Leased Real Property as of the Effective Date (other than the Excluded Property), (A) a Mortgage duly authorized and executed, assigning the Guarantyapplicable Transaction Party’s interest in such Leased Real Property to the Investor, in form for recording in the recording office of each jurisdiction where the Leased Real Property demised under the Mining Lease related thereto is situated, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Investor) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to the Investor which Mortgage and other instruments are effective to create (upon recordation of such instruments) a first priority Lien on such Transaction Party’s interests in such Leased Real Property subject to no Liens other than Permitted Encumbrances, and (B) a new memorandum of lease, in form for recording in the appropriate recording office and otherwise in form and substance acceptable to the Investor, with respect to each of the Principal Lease Agreements, which memorandums shall have been duly executed, filed and recorded;
(iiix) a Revolving Credit Note With respect to each Leased Real Property assigned to the Investor pursuant to subparagraph (ix) above, (A) the written consent to the assignment thereof by any landlord or other Person having an interest in such Leased Real Property (except that the ▇▇▇▇▇ Consent shall not be required) to the extent such consent is required by the terms of any lease or applicable law or deemed appropriate by the Investor, which written consent shall be in form and substance acceptable to the Investor, and (B) notwithstanding the foregoing, the Company shall deliver to the Investor written consents of the lessors to the assignment of each of the Principal Lease Agreements together with an estoppel certificate executed by such lessors, in each case in form and substance acceptable to the Borrower in favor Investor and regardless of whether consent to the assignment thereof is expressly required by the terms thereof;
(xi) With respect to each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance item of Owned Real Property and Leased Real Property held by the Company or any Subsidiary thereof as of the Effective Date, policies or certificates of insurance of the type required by Section 5.02;
(ivxii) each Collateral Document set forth on Schedule 1.1A required With respect to be executed on the Effective Date as indicated on such scheduleLeased Real Property that constitutes the Core Properties, duly executed by each Loan Party theretoa title opinion of Holland & ▇▇▇▇, together with:
(A) copies of certificates, if any, representing in form and substance acceptable to the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankInvestor;
(Bxiii) [Reserved]; and
(C) Without limitation of, but not in duplication of any provision contained in this Section 3.01(a), evidence that all other actionsdocuments and instruments, recordings and filings that the Administrative Agent and the Collateral Agent has including UCC financing statements, required by law or reasonably requested by the Investor to be takenfiled, completed registered or otherwise provided for recorded to satisfy create the Collateral Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and Guarantee Requirement perfect such Liens to the extent required by, and with the priority required by, the Transaction Documents, shall have been takenfiled, completed registered or otherwise provided for in a manner reasonably satisfactory recorded or delivered to the Administrative AgentInvestor for filing, registration or the recording concurrently with, or promptly following, the execution and delivery of each Security Document;
(vxiv) such certificates of good standing from Evidence reasonably acceptable to the applicable secretary of state Investor of the state payment in full by Company of organization all search and examination charges, mortgage recording taxes, UCC filing fees and charges, and any other recordation, registration or filing taxes, fees or charges, required for the perfection of the security interests created under the Security Documents or the procurement of title insurance policies;
(xv) Certified copies of the resolutions of the board of directors of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Transaction Party approving the Transactions (to the extent applicable to it) and 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 Transaction Document to which such Loan Party it is a party or is to be a party and authorizing the officers of such Transaction Party to act on behalf of such Transaction Party, as the Effective Datecase may be, and of all documents evidencing other necessary action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Transaction Document to which it is or is to be a party;
(vixvi) an opinion from Proskauer RoseA copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Transaction Party dated reasonably near the date of the Initial Borrowing, LLPcertifying (A) as to a true and correct copy of the Constitutive Documents of such Transaction Party and each amendment thereto on file in such Secretary’s office, New York (B) that (1) such amendments are the only amendments to such Transaction Party’s Constitutive Documents on file in such Secretary’s office and California counsel (2) such Transaction Party has paid all franchise taxes to the Loan Parties substantially date of such certificate, and (C) such Transaction Party is duly incorporated and in good standing under the form laws of Exhibit G-1the State of its organization;
(viixvii) an A copy of a certificate of the Secretary of State of each jurisdiction in which each Transaction Party is required to be qualified to do business, dated reasonably near the date of the Initial Borrowing, stating that such Transaction Party is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate;
(xviii) A certificate of the Secretary or Assistant Secretary of each Transaction Party, dated the date of the Initial Borrowing (the statements made in which certificate shall be true on and as of the date of the Initial Borrowing), certifying as to (A) the absence of any amendments to the Constitutive Documents of such Transaction Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(xvi), (B) a true and correct copy of the bylaws as in effect on the date on which the resolutions referred to in Section 3.01(a)(xv) were adopted and on the date of the Initial Borrowing, (C) the due organization and good standing of such Transaction Party as a corporation, organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Transaction Party, and (D) the names and true signatures of the officers of such Transaction Party authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(xix) A certificate of a senior officer of each Transaction Party, certifying as to (A) the truth of the representations and warranties contained in the Transaction Documents as though made on and as of the date of the Initial Borrowing, and (B) the absence of any event occurring and continuing, or resulting from the Initial Borrowing, that constitutes a Default;
(xx) A Borrowing Notice relating to the Initial Borrowing;
(xxi) The audited annual financial statements for the year ended December 31, 2009, and the unaudited quarterly financial statements for the quarter ended March 31, 2010, of the Transaction Parties, together with a certificate of the chief financial officer of the Company to the effect that such statements accurately present the financial position of the Transaction Parties as of the periods covered thereby in accordance with GAAP;
(xxii) A favorable opinion from of Holland & ▇▇▇▇ LLP, counsel for the Transaction Parties, in form and substance acceptable to the Investor;
(xxiii) A favorable opinion of Holland & ▇▇▇▇ LLP, relating to the recordation of and lien created by the Mortgage filed on or before the Effective Date with respect to the Leased Real Property covered by the Principal Lease Agreements, in form and substance acceptable to the Investor;
(xxiv) A certificate of the President of the Company, certifying as to the fulfillment of such conditions precedent set forth in this Section 3.01 as shall be required by the Investor; and
(xxv) A letter or other instrument in writing, executed by the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust and addressed to the Investor, (i) certifying as to the fact that the indebtedness secured by certain mortgages covering the property leased under the ▇▇▇▇▇▇▇ Trust Lease has been paid and satisfied in full (and attaching true and correct copies of such debt instrument and mortgage) and (ii) agreeing to give prompt written notice to the Investor if any foreclosure proceedings shall be exercised under such mortgage.
(b) The holders of the Note Agreement Promissory Notes shall have executed and delivered to the Investor a subordination agreement in form and substance acceptable to the Investor (as amended, the “Subordination Agreement”), pursuant to which the holders of the Note Agreement Promissory Notes shall have agreed to subordinate the indebtedness evidenced thereby in right or payment, priority and exercise of remedies to the indebtedness created under this Agreement, except that so long as no Default shall have occurred and be continuing, the Company shall have the right to make monthly payments of interest of up to, in the aggregate, $7,500 per month under such Note Agreement Promissory Notes.
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Transaction Party pending or, to the knowledge of the Company, threatened (under circumstances under which a reasonable person acting under similar circumstances would recognize a statement, allegation or other action as constituting a threat) before any Governmental Authority (i) other than any thereof satisfactory to the Investor and described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) that purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transactions.
(d) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transactions shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Investor) and those obtained shall be in effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect, it being agreed that the Company shall not be required to obtain the ▇▇▇▇▇ Consent); and no law or regulation shall be applicable in the reasonable judgment of the Investor, in each case that restrains, prevents or imposes materially adverse conditions upon the Transactions or the rights of the Transaction Parties to perform their obligations under the Transaction Documents, including to grant the Liens under the Security Documents as contemplated thereby.
(e) The Company shall have paid all costs and expenses incurred by the Investor in connection with the negotiation, preparation, execution and delivery of the Transaction Documents (including the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date Investor, and after giving effect ▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇, local Utah counsel to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the ArrangersInvestor.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.
Appears in 2 contracts
Sources: Investment Agreement (Desert Hawk Gold Corp.), Investment Agreement (Desert Hawk Gold Corp.)
Conditions Precedent to Initial Borrowing. The obligations This Agreement (and the amendment and restatement of the Lenders Existing Credit Agreement to be effected hereby) and the obligation of each Lender to make Revolving Loans and an Advance on the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be subject to the satisfaction or due waiver in accordance with Section 12.1 of each occasion of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (initial Borrowing shall not become effective until the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice Agent shall not include any representation or statement as to the absence (or existence) of any Default;
(ii) have received executed counterparts of this Agreement by each of the parties hereto and each of the Guaranty;following on or before April 6, 2007, each (unless otherwise specified below) dated the Closing Date, in form and substance satisfactory to the Administrative Agent and (except for the items in clauses (a), (b) and (c)) in sufficient copies for each Lender:
(iiia) a Revolving Credit Note executed Certified copies of (x) the certificate of incorporation and by-laws of the Borrower, (y) the resolutions of the Board of Directors of the Borrower authorizing the making and performance by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two this Agreement and the transactions contemplated hereby, and (2z) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificatesdocuments evidencing all other necessary corporate action and governmental approvals, if any, representing the Pledged Equity referred with respect to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;this Agreement.
(Bb) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state A certificate of the state Secretary or an Assistant Secretary of organization the Borrower certifying the names and true signatures of each Loan Party, certificates the officers 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 Borrower authorized to act as a Responsible Officer in connection with sign this Agreement and the other Loan Documents to which such Loan Party is a party or is documents to be a party on the Effective Date;delivered hereunder.
(vic) an opinion A certificate from Proskauer Rose, LLP, New York and California counsel the Secretary of State of the State of Delaware dated a date reasonably close to the Loan Parties substantially in Closing Date as to the form good standing of Exhibit G-1;and certificate of incorporation filed by the Borrower.
(viid) an A favorable opinion from of K▇▇▇▇▇▇ C▇▇▇▇▇▇▇▇ L▇▇▇▇▇▇ & H▇▇▇▇▇▇, L.L.P., special counsel to the Borrower, substantially in the form of Exhibit C hereto.
(e) A favorable opinion of Milbank, Tweed, H▇▇▇▇▇ & M▇▇▇▇▇ LLP, Nevada special New York counsel to the Loan Parties Administrative Agent, substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effectD hereto.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a A certificate of a Responsible Officer of the Borrower certifying that (i) no Default or Event of Default as of the date thereof has occurred and is continuing, and (ii) the representations and warranties contained in form Section 4.01 are true and substance reasonably correct on and as of the date thereof as if made on and as of such date.
(g) Evidence that all principal, interest and other amounts owing by the Borrower under or in respect of the Existing Credit Agreement shall have been (or shall simultaneously be) paid in full and all commitments to extend credit thereunder of any Lender (as defined therein) thereunder that is not a Bank hereunder shall have been terminated, in each case in a manner satisfactory to the Administrative Agent.
(h) Notes, certifying payable to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality order of the provisions of respective Lenders that have requested the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory same prior to the Lenders unless an officer of Closing Date, duly completed and executed.
(i) Such other documents relating to this Agreement and the transactions contemplated hereby as the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such or any Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to through the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loansmay reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Coca Cola Bottling Co Consolidated /De/)
Conditions Precedent to Initial Borrowing. The obligations obligation of the Lenders to make Revolving Loans and a loan on the obligations occasion of any Issuer to Issue Letters of Credit shall, in each case, shall be the initial Borrowing is subject to and conditional upon the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower terms and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):conditions:
(a) The Administrative Agent’s receipt each Lender shall have received a duly executed copy of the following, this Agreement;
(b) each of which Lender shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each have received in form and substance reasonably satisfactory to the Administrative Agentit:
(i) a Notice duly certified copy of Borrowing in accordance with a resolution of the requirements hereof provided that such notice shall not include any representation or statement as Board of Directors of the Borrower authorizing it to the absence (or existence) of any Defaultbecome a party to and to perform its obligations under this Agreement;
(ii) a certificate of incumbency of the Borrower setting forth the name of the individuals authorized to execute cheques, notes, bills of exchange, notices and all other documents and instruments required to be executed counterparts of by the Borrower pursuant to this Agreement and the GuarantyAgreement;
(iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance certified copy of the Effective Dateconstating documents of the Borrower;
(ivc) each Collateral Document set forth on Lender shall have received an opinion of counsel concerning the Borrower, addressed to the Agent and the Lenders in form and substance reasonably satisfactory to each Lender and substantially as provided in Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of 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 blank12.1(c);
(Bd) [Reserved]; andthe Agent shall have received an initial Notice of Borrowing;
(Ce) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for received a Borrowing Base Certificate in a manner form and substance reasonably satisfactory to the Administrative Agent;
(veach Lender and substantially as provided in Schedule 12.1(e) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date initial Borrowing;
(f) no Event of Default having occurred and no other event having occurred, which with the giving of notice, lapse of time, or both, would constitute an Event of Default;
(g) each Lender shall have been paid in full in cash received any other documents and information which it has reasonably requested;
(which such amounts, notwithstanding h) each Lender shall have approved the foregoing, may be offset against the proceeds corporate structure of the Facility).Borrower and of its parents, Affiliates and Subsidiaries, as the case may be, and the sources and uses of funds available to the Borrower; and
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; representations and (iiwarranties in Article II being true and correct with the same effect as though made or restated as of the date of the initial Borrowing, except with respect to Schedules 2.1(o) the Merger shall and 2.1(p) to this Agreement, which may be consummated in all material respects amended in accordance with the terms provisions of the Merger this Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations of the Lenders shall have no obligation to make Revolving Loans and the obligations an Advance as part of any Issuer Borrowing pursuant to Issue Letters of Credit shall, in each case, shall be subject to the satisfaction or due waiver in accordance with Section 12.1 of each of this Agreement unless and until the following conditions precedentprecedent shall have been satisfied: (i) the representations and warranties contained in Section 4.1 shall be correct on and as of the date of the initial Borrowing, except as otherwise agreed between (ii) the Borrower Borrowers shall have paid all fees specified in Section 2.4, and (iii) the Administrative Agent (shall have received on or before the date on of the initial Borrowing the following, each dated such day, in form and substance satisfactory to the Administrative Agent and (except for the notes described in (a) and the FMB Indentures, of which such conditions are satisfied or waived herein only one copy need be delivered to the Administrative Agent) in accordance with Section 12.1 shall be the “Effective Date”):sufficient copies for each Lender:
(a) The Administrative Agent’s receipt of the followingA Note from each Borrower, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to approved by the Administrative Agent, payable to each Lender that has requested one pursuant to Section 2.12.
(b) Counterparts of the Escrow Agreement, duly executed by the Escrow Agent, GPU, ME, PE and JC, together with evidence that the following documents have been delivered to the Escrow Agent in accordance with the terms of the Escrow Agreement:
(i) a Notice the ME Collateral Notes, duly executed by ME and authenticated by the Note Trustee, in the aggregate principal amount of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default$150 million;
(ii) the PE Collateral Notes, duly executed counterparts by PE and authenticated by the Note Trustee, in the aggregate principal amount of this Agreement and the Guaranty$150 million;
(iii) a Revolving Credit Note the JC Collateral Notes, duly executed by JC and authenticated by the Borrower Note Trustee, in favor the aggregate principal amount of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date;$266 million; and
(iv) each the PE Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such scheduleFMBs, duly executed by each Loan Party theretoPE and authenticated by the FMB Trustee, in the aggregate principal amount of $420 million.
(c) A certified copy of the ME Note Order, duly executed by ME, together with:with evidence that the Note Trustee shall have received the ME Note Order.
(Ad) A certified copy of the PE Note Supplemental Indenture, duly executed by PE and the Note Trustee.
(e) A certified copy of the JC Note Order, duly executed by JC, together with evidence that the Note Trustee shall have received the JC Note Order.
(f) Certified copies of certificatesthe ME Collateral FMBs in the aggregate principal amount of $150 million, if anyduly executed by ME and authenticated by the FMB Trustee, representing together with evidence that the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing Note Trustee shall have received the Pledged Debt indorsed in blank;ME Collateral FMBs.
(Bg) [Reserved]; andCertified copies of JC Collateral FMBs in the aggregate principal amount of $266 million, duly executed by JC and authenticated by the FMB Trustee, together with evidence that the Note Trustee shall have received the JC Collateral FMBs.
(Ch) evidence A certified copy of the ME Supplemental FMB Indenture, duly executed by ME and the FMB Trustee.
(i) A certified copy of the PE Supplemental FMB Indenture, duly executed by PE and the FMB Trustee.
(j) A certified copy of the JC Supplemental FMB Indenture, duly executed by JC and the FMB Trustee.
(k) A certificate of the Secretary or Assistant Secretary of each Subsidiary Borrower certifying that attached thereto are true and complete copies of the FMB Indenture and the Note Indenture to which such Subsidiary Borrower is a party.
(l) Copies of all other actionscertificates and opinions delivered by or on behalf of the Note Trustee, recordings the FMB Trustee and filings that the Administrative Agent Subsidiary Borrowers in connection with (i) the execution and delivery of the Collateral Note Authorizations, the FMB Supplemental Indentures, the Collateral Notes and the Collateral Agent has reasonably requested FMBs, (ii) the authentication by the Note Trustee of the Collateral Notes and (iii) the authentication by the FMB Trustee of the Collateral FMBs.
(m) Copies of (i) audited consolidated financial statements of each Borrower and unaudited consolidating financial statements of GPU, in each case dated as of December 31, 2000, and (ii) pro forma cash flow statements of the Borrowers and GPU and its Subsidiaries on a consolidated basis and a pro forma debt schedule of the Borrowers and GPU and its Subsidiaries on a consolidated basis, with the assumption that the PaPUC issues a PLR Rate Order granting in all material respects the relief sought by GPU which statements were included in the Information Memorandum (the "Base Case Cash Flow Statement").
(n) Certified copies of the resolutions of the Board of Directors of each Borrower approving each Loan Document to which such Borrower is, or is to be, a party and of all documents evidencing other necessary corporate action and governmental approvals, including, without limitation, appropriate orders of the SEC under the Utility Act, with respect to the Loan Documents.
(o) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying the names and true signatures of the officers of each Borrower authorized to sign each Loan Document to which such Borrower is, or is to be, a party and the other documents to be takendelivered by it hereunder.
(p) Evidence that, completed or otherwise provided for to satisfy upon application of the Collateral and Guarantee Requirement proceeds of the initial Borrowing hereunder, the commitments of the lenders under the Bilateral Agreements, other than those set forth in part B of Schedule IV hereto, shall have been takenterminated, completed or otherwise provided for and the obligations of the Borrowers under the Bilateral Agreements, other than those set forth in a manner reasonably satisfactory to the Administrative Agent;part B of Schedule IV hereto, shall have been paid in full.
(vq) such certificates A favorable opinion of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Priest LLP, Nevada counsel to for the Loan Parties Borrowers, substantially in the form of Exhibit G-2;Q hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(viiir) a solvency certificate from A favorable opinion of King & Spalding, special counsel for the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) Administrative Agent, substantially in the form attached hereto as of Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the ArrangersR hereto.
(bs) All fees Evidence that, upon application of the proceeds of the initial Borrowing hereunder, the commitments of the Existing Bank Group under the Existing Credit Agreement shall have been terminated, and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before obligations of the Effective Date Existing Bank Group shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility)full.
(ct) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective DateSuch other approvals, (i) the Equity Contribution shall have been consummated; opinions and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications documents as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior as to the Effective Date.
(k) Since October 11legality, 2011validity, there shall not have been any Event, change binding effect or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure enforceability of any Merger Agreement Representation to be true and correct shall not result in a failure Loan Document or the financial condition, properties, operations or prospects of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreementany Borrower.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.
Appears in 1 contract
Sources: Credit Agreement (Gpu Inc /Pa/)
Conditions Precedent to Initial Borrowing. The obligations of the Lenders to make Revolving Loans and the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be subject to theeffectiveness of this Agreement on the Effective Date was subject to satisfaction (or due waiver in accordance with Section 12.1 of each each) of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations obligation of each Bank to make an Advance on the occasion of the Lenders to make Revolving Loans and the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be initial Borrowing is subject to the satisfaction or due waiver in accordance with Section 12.1 of following conditions precedent (each of the following conditions precedent, except as otherwise agreed between the Borrower documents referred to below to be in form and substance satisfactory to the Administrative Agent (Agent, dated a date on or within 10 days prior to the date on which such conditions are satisfied or waived herein hereof and in accordance with Section 12.1 shall be the “Effective Date”sufficient copies for each Bank):
(a) The Administrative Agent’s receipt Agent shall have received, on behalf of the followingBanks, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer certificate of the signing Loan Party each in form and substance reasonably satisfactory to Secretary or an Assistant Secretary of the Administrative AgentBorrower certifying as to:
(i) a Notice the resolutions of Borrowing in accordance the Board of Directors of the Borrower approving this Agreement and of all documents evidencing other necessary corporate action and governmental approvals, if any, with the requirements hereof provided that such notice shall not include any representation or statement as respect to the absence (or existence) of any Default;this Agreement,
(ii) executed counterparts a true and correct copy of this Agreement and the Guaranty;bylaws of the Borrower as then in effect and
(iii) a Revolving Credit Note executed by the names and true signatures of the officers of the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 sign this Agreement and the other Loan Documents to which such Loan Party is a party or is documents to be a party on the Effective Date;delivered hereunder.
(vib) an The Administrative Agent shall have received, on behalf of the Banks, a copy of the restated articles of incorporation of the Borrower and each amendment thereto, each certified by the Secretary of State of the State of Utah as being a true and correct copy thereof, and a certificate of said Secretary of State stating that the Borrower has legal existence and is in good standing with the office of said Secretary of State.
(c) The Administrative Agent shall have received, on behalf of the Banks, (i) the executed legal opinion from Proskauer Roseof ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, LLP▇▇., New York and California counsel to Associate General Counsel of the Loan Parties Borrower, substantially in the form of Exhibit G-1;
C-1 hereto and (viiii) an the executed legal opinion from of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq., Utah counsel for the Borrower, substantially in the form of Exhibit C-2 hereto, covering such matters relating to this Agreement and the transactions hereunder and as to such other matters as any Bank through the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received, on behalf of the Banks, a favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ ▇& ▇▇▇▇▇▇ LLP, Nevada special New York counsel to for the Loan Parties Administrative Agent, substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior NotesD hereto.
(e) The Intercreditor Agreement and the Term Facility Documentation Borrower shall have been duly executed paid all fees due and delivered by each party thereto, and shall be in full force and effectpayable as of or before the Closing Date to the Banks.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory on behalf of the Banks, a certificate from an officer of the Borrower to the Administrative Agent effect that (i) no Default hereunder shall have occurred and be continuing; (ii) no Default under, and as defined in, the Arrangers a Field Examination Existing Revolving Credit Agreement shall have occurred and the Initial Inventory Appraisal be continuing; and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect (iii) each of the Collateral included representations and warranties in Section 4.01 of this Agreement is true and correct on the Borrowing Base not less than ten (10) Business Days prior to the Effective Datedate hereof.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(ng) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agentevidence that, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted on or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Closing Date, borrowing (i) the outstanding principal amount of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto each of the outstanding “Advances” and such Lender “Special Rate Loans” under, and as defined in, the Existing Revolving Credit Agreement, together with all accrued and unpaid interest thereon, all fees payable in respect thereof and all other amounts payable thereunder shall not have made available to been paid in full, and (ii) the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans“Commitments” as defined therein shall have been canceled.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations obligation of each Bank to make an Advance on the occasion of the Lenders to make Revolving Loans and the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be initial Borrowing is subject to the satisfaction or due waiver in accordance with Section 12.1 of following conditions precedent (each of the following conditions precedent, except as otherwise agreed between the Borrower documents referred to below to be in form and substance satisfactory to the Administrative Agent (Agent, dated a date on or within 10 days prior to the date on which such conditions are satisfied or waived herein hereof and in accordance with Section 12.1 shall be the “Effective Date”sufficient copies for each Bank):
(a) The Administrative Agent’s receipt Agent shall have received, on behalf of the followingBanks, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer certificate of the signing Loan Party each in form and substance reasonably satisfactory to Secretary or an Assistant Secretary of the Administrative AgentBorrower certifying as to:
(i) a Notice the resolutions of Borrowing in accordance the Board of Directors of the Borrower approving this Agreement and of all documents evidencing other necessary corporate action and governmental approvals, if any, with the requirements hereof provided that such notice shall not include any representation or statement as respect to the absence (or existence) of any Default;this Agreement,
(ii) executed counterparts a true and correct copy of this Agreement and the Guaranty;bylaws of the Borrower as then in effect and
(iii) a Revolving Credit Note executed by the names and true signatures of the officers of the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 sign this Agreement and the other Loan Documents to which such Loan Party is a party or is documents to be a party on the Effective Date;delivered hereunder.
(vib) an The Administrative Agent shall have received, on behalf of the Banks, a copy of the restated articles of incorporation of the Borrower and each amendment thereto, each certified by the Secretary of State of the State of Utah as being a true and correct copy thereof, and a certificate of said Secretary of State stating that the Borrower has legal existence and is in good standing with the office of said Secretary of State.
(c) The Administrative Agent shall have received, on behalf of the Banks, (i) the executed legal opinion from Proskauer Roseof ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, LLP▇▇., New York and California counsel to Associate General Counsel of the Loan Parties Borrower, substantially in the form of Exhibit G-1;
C-1 hereto and (viiii) an the executed legal opinion from of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq., Utah counsel for the Borrower, substantially in the form of Exhibit C-2 hereto, covering such matters relating to this Agreement and the transactions hereunder and as to such other matters as any Bank through the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received, on behalf of the Banks, a favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ ▇& ▇▇▇▇▇▇ LLP, Nevada special New York counsel to for the Loan Parties Administrative Agent, substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior NotesD hereto.
(e) The Intercreditor Agreement and the Term Facility Documentation Borrower shall have been duly executed paid all fees due and delivered by each party thereto, and shall be in full force and effectpayable as of or before the Closing Date to the Banks.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory on behalf of the Banks, a certificate from an officer of the Borrower to the Administrative Agent effect that (i) no Default hereunder shall have occurred and be continuing; (ii) no Default under, and as defined in, the Arrangers a Field Examination Existing Revolving Credit Agreement shall have occurred and the Initial Inventory Appraisal be continuing; and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect (iii) each of the Collateral included representations and warranties in Section 4.01 of this Agreement is true and correct on the Borrowing Base not less than ten (10) Business Days prior to the Effective Datedate hereof.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(ng) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agentevidence that, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted on or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Closing Date, borrowing (i) the outstanding principal amount of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto each of the outstanding “Advances” and such Lender “Special Rate Loans” under, and as defined in, the Existing Revolving Credit Agreement, together with all accrued and unpaid interest thereon, all fees payable in respect thereof and all other amounts payable thereunder shall not have made available been paid in full, and (ii) the “Commitments” as defined therein shall have been canceled.
(h) All documentation and other information required by regulatory authorities under applicable “know your customer” rule and regulations, including the Patriot Act to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loansextent requested five business days prior to the date hereof.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations obligation of each Lender to make an Advance on the occasion of the Lenders to make Revolving Loans and the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be initial Borrowing is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedent, except as otherwise agreed between the Borrower and condition precedent that the Administrative Agent shall have received (the date unless waived) on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):
(a) The Administrative Agent’s receipt of before August 28, 2002, the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(ispecified below) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of dated the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Arrangers a Field Examination items in clauses (a), (b), (c) and (d)) in sufficient copies for each Lender:
(a) Certified copies of (x) the charter and by-laws of the Borrower, (y) the resolutions of the Board of Directors of the Borrower authorizing and approving this Agreement and the Initial Inventory Appraisal transactions contemplated hereby, and such (z) all documents evidencing other reportsnecessary corporate action and governmental approvals, audits if any, with respect to this Agreement;
(b) A certificate of the Secretary or certifications an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder;
(c) A certificate from the Secretary of State of the State of Delaware dated a date reasonably close to the date hereof as to the good standing of and charter documents filed by the Borrower;
(d) A favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower, substantially in the form of Exhibit C hereto;
(e) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included Agent, substantially in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.form of Exhibit D hereto;
(kf) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a A certificate of a Responsible Officer of the Borrower certifying that (i) no Default or Event of Default as of the date thereof has occurred and is continuing, and (ii) the representations and warranties contained in form Section 4.01 are true and substance reasonably satisfactory correct in all material respects on and as of the date thereof as if made on and as of such date; and
(g) Such other approvals, opinions and documents relating to this Agreement and the transactions contemplated hereby as the Administrative Agent or any Lender may, through the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loansreasonably request.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations obligation of each Lender to make its Revolving Credit Advance on the occasion of the Lenders to make Revolving Loans and the obligations of any Issuer to Issue Letters of Credit shall, in each case, initial Borrowing shall be subject to the satisfaction satisfaction, on or due waiver in accordance with Section 12.1 of each before July 29, 2004 of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”)::
(a) The Administrative Agent’s receipt Agent shall have received counterparts of this Agreement executed by the following, each of which parties hereto.
(b) The following statements shall be originals or facsimiles (followed promptly by originals) unless otherwise specifiedtrue on the Closing Date and the Administrative Agent shall have received, with a copy for each properly executed Lender, a certificate signed by a Responsible Officer duly authorized officer of each Borrower, dated the signing Loan Party each in form and substance reasonably satisfactory to the Administrative AgentClosing Date, stating that:
(i) a Notice the representations and warranties made by such Borrower and contained in Section 4.01 are true and correct on and as of Borrowing in accordance with the requirements hereof provided Closing Date (it being understood and agreed that such notice shall not include any representation or statement warranty which expressly refers by its terms to a specified date shall be required to be correct in all material respects only as to the absence (or existence) of any Default;such date), and
(ii) executed counterparts no Default has occurred and is continuing on and as of this Agreement and the Guaranty;Closing Date.
(iiic) The Administrative Agent shall have received the following, each dated the Closing Date, in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Lender:
(i) If requested by any Lender pursuant to Section 2.01(c), a Revolving Credit Note executed by for the Borrower in favor account of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such scheduleLender, duly executed by each Loan Party theretoBorrower, together with:in the amount of such Lender’s Commitment as in effect on the Closing Date.
(Aii) Certified copies of certificatesthe certificate of incorporation and by-laws of each Borrower as in effect on the Closing Date.
(iii) Certified copies of the resolutions of the Board of Directors of each of the Borrowers approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action, third-party and governmental approvals and consents, if any, representing with respect to this Agreement and the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;Notes.
(Biv) [Reserved]; and
(C) evidence that all other actionsA certificate of the Secretary or an Assistant Secretary of each of the Borrowers certifying the names and true signatures of the officers of each of the Borrowers, recordings and filings that the Administrative Agent respectively, authorized to sign this Agreement and the Collateral Agent has reasonably requested Notes and the other documents to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;delivered hereunder.
(v) such certificates of good standing from the applicable secretary of state Evidence of the state termination of organization all the outstanding commitments and payment in full of each Loan Partyall outstanding obligations of the Borrowers under the Credit Agreement dated as of August 1, certificates 2002, as amended, among the Borrowers, the Lenders named therein, The Bank of resolutions or other actionNew York, incumbency certificates and/or other certificates as Syndication Agent, and The Bank of Responsible Officers of each Loan Party Nova Scotia, 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 on the Effective Date;Agent.
(vi) an An opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties Managing Director, Assistant General Counsel and Secretary of Ambac Financial, substantially in the form of Exhibit G-2;E hereto.
(vii) An opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director and General Counsel of Ambac Assurance, substantially in the form of Exhibit F hereto.
(viii) a solvency certificate from the chief financial officer An opinion of the Borrower (as of the Effective Date and after giving effect ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, S.C., Wisconsin special counsel to the Transaction) Ambac Assurance, substantially in the form attached hereto as of Exhibit M;G hereto.
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to An opinion of Shearman & Sterling LLP, special New York counsel for the Loan Documents has been obtained and is Borrowers, substantially in effect as the form of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;Exhibit H hereto.
(x) certified copies An opinion of an external counsel for the Borrowers saying that neither Borrower is an “investment company” within the meaning of the Merger Agreement and schedules and other attachments theretoInvestment Company Act of 1940, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have receivedamended, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective DateAgent.
(kxi) Since October 11An opinion of Milbank, 2011Tweed, there shall not have been any Event▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, change or occurrence thatspecial New York counsel to the Administrative Agent, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effectsubstantially in the form of Exhibit I hereto.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(nd) The Administrative Agent shall have received a certificate payment of a Responsible Officer of the Borrower in form all fees, costs and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) expenses due and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated payable by the Loan Documents shall have received notice from such Lender prior to the Borrowing Borrowers on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available Closing Date pursuant to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loansthis Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Ambac Financial Group Inc)
Conditions Precedent to Initial Borrowing. The obligations ----------------------------------------- obligation of each Lender to make a Loan on the Credit Agreement ---------------- occasion of the Lenders initial Borrowing or, if earlier, of the Issuing Bank to make Revolving Loans and issue the obligations of any Issuer to Issue Letters initial Letter of Credit shall(other than an Existing Letter of Credit), in each case, shall be is subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedentprecedent being satisfied on or before April 15, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):1997:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer on or before the day of the Borrower initial Borrowing or such initial issuance the following in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Revolving Loan Notes payable to the order of the Lenders, respectively.
(ii) Certified copies of (x) the charter and by-laws of the Borrower, (y) the resolutions of the Board of Directors of the Borrower authorizing and approving this Agreement and the Notes, and (z) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of the Borrower's Law Department, substantially in the form of Exhibit D and covering such other matters relating hereto as any Lender, through the Administrative Agent, may reasonably satisfactory request.
(v) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to the Administrative Agent, certifying to substantially in the matters set forth in Section 4.1(c), form of Exhibit E.
(kb) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the The Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender evidence that, prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and simultaneously with such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such initial Borrowing or Swing issuance, the Borrower shall have (i) repaid in full the outstanding principal amount of each of the outstanding "Loans." as defined in the Existing Credit Agreements together with all accrued and unpaid interest thereon, all fees payable in respect thereof and all other Credit Agreement ----------------
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations obligation of each Lender to make a Loan on the occasion of the Lenders initial Borrowing and of an Issuing Bank to make Revolving Loans and issue the obligations initial Letter of any Issuer to Issue Letters of Credit shallCredit, in each casewhichever shall first occur, shall be subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the following conditions precedentprecedent that, except as otherwise agreed between the Borrower and the Administrative Agent on a date (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):) not later than June 10, 2005, the Administrative Agent shall have received the following:
(a) The Administrative Agent’s receipt Each of the followingfollowing documents, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of dated the signing Loan Party each Effective Date and in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for the Notes) in sufficient copies for each Lender:
(i) a Notice of Borrowing in accordance with The Revolving Loan Notes payable by the requirements hereof provided that such notice shall not include Company and any representation or statement as Designated Borrower to the absence (or existence) order of any Default;the Lenders, respectively.
(ii) executed counterparts Certified copies of (x) the charter and by-laws of the Company, (y) the resolutions of the Board of Directors of the Company authorizing and approving this Agreement and the Guaranty;Notes and the transactions contemplated by the Loan Documents, and (z) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Loan Documents.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of the Company’s Law Department, substantially in the form of Exhibit D and covering such other matters relating hereto as any Lender, through the Administrative Agent, may reasonably request.
(v) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to the Administrative Agent, substantially in the form of Exhibit E.
(vi) A certificate of a Revolving senior officer of the Company to the effect that (x) the representations and warranties contained in Section 5.01 are correct (other than any such representations or warranties which, by their terms, refer to a prior date) and (y) no event has occurred and is continuing which constitutes a Default. MARRIOTT CREDIT AGREEMENT
(b) Confirmation that (1) the Company has paid all accrued fees and expenses of the Administrative Agent and the Lenders hereunder (including the fees and expenses of counsel to the Administrative Agent to the extent then payable), including without limitation all accrued but unpaid fees and expenses under the Existing Credit Note executed by Agreements, to the Borrower in favor of each Lender that has requested a Revolving Credit Note extent the same have been invoiced to the Company at least two (2) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each (2) the Company has paid in full the principal of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions interest on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent Loans and the Borrower mutually agree in good faith). Notwithstanding anything in this AgreementNotes as defined in, and all other amounts whatsoever payable under, the terms of Existing Credit Agreements and has terminated the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees Commitments as defined therein and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall all Existing Letters of Credit have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds become Letters of the FacilityCredit pursuant to Section 2.04(b).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations effectiveness of this Agreement on the Lenders to make Revolving Loans and the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be Effective Date was subject to the satisfaction (or due waiver in accordance with Section 12.1 of each waiver) of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date;
(iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, 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 on the Effective Date;
(vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.
Appears in 1 contract
Conditions Precedent to Initial Borrowing. The obligations No Lender shall be obligated to make any Advance unless the Administrative Agent shall have received (a) evidence that the Borrower has paid, or concurrently with the making of the Lenders to make Revolving Loans initial Advances will pay, all of its obligations under the Existing Agreement; and the obligations of any Issuer to Issue Letters of Credit shall, in each case, shall be subject to the satisfaction or due waiver in accordance with Section 12.1 of (b) each of the following conditions precedentdocuments, except as otherwise agreed between the Borrower and the Administrative Agent (each dated the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals initial Borrowing (or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably an earlier date satisfactory to the Administrative Agent, in form and substance satisfactory to the Administrative Agent and each (except for the Notes) in sufficient copies to provide one for each Lender:
(i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Revolving Credit A Note executed by the Borrower in favor of for each Lender that has requested a Revolving Credit Note at least two to evidence its Advances.
(2ii) Business Days in advance Certified copies of resolutions of the Effective Date;Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby.
(iviii) each Collateral Document set forth on Schedule 1.1A required to be executed on A certificate of the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with:
Secretary or an Assistant Secretary of the Borrower certifying (A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank names and instruments evidencing the Pledged Debt indorsed in blank;
(B) [Reserved]; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such certificates of good standing from the applicable secretary of state true signatures of the state officers of organization of each Loan Party, 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 Borrower authorized to act as a Responsible Officer in connection with sign this Agreement and the other Loan Documents to which such Loan Party is a party or is documents to be a party delivered hereunder; (B) that attached thereto are true and correct copies of the certificate of formation and operating agreement of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby.
(iv) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the Effective Date;date of such certificate.
(viv) an A favorable opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1;
(vii) an opinion from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇▇▇ LLC, Nevada special counsel to for the Loan Parties Borrower, substantially in the form of Exhibit G-2;
(viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers.
(b) All fees and reasonable and documented out-of-pocket expenses required to be paid on or before the Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been paid in full in cash (which such amounts, notwithstanding the foregoing, may be offset against the proceeds of the Facility).
(c) Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement.
(d) Prior to or substantially simultaneously with the initial Borrowings on the Effective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and (ii) at least $250,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) Prior to or substantially simultaneously with the initial Borrowing on the Effective Date, the Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto.
(g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date.
(k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000.
(m) The Merger Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, unless such failure gives Holdings the right to terminate its obligations under the Merger Agreement.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, borrowing of Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing or Swing Loans.D.
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Sources: Credit Agreement (Exelon Corp)