Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent: (a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011); (b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority; (c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan Documents, and the Administrative Agent shall have received all information and copies of all documents, which the Administrative Agent may reasonably have requested in connection therewith and, where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified by appropriate corporate officers of Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby); (d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements; (e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral; (f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent; (g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011; (h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof; (i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured; (j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations; (k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent; (l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution; (m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory; (n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent; (o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011; (p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the Lenders; (q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date; (r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect; (s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and (t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 2 contracts
Sources: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Agent and Lenders to make the initial Loans or of Issuing Lender Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and Agent shall have received (i) counterparts of such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by this Agreement and the other Financing Agreement, (ii) for including all those listed in the account of Closing Checklist attached hereto as Annex 1, each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of by the Existing Term Loan Agreement, including, but not limited to, a payoff letter, Lenders of their respective financing arrangements with Borrowers and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental AuthorityGuarantors;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein Borrower and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, Guarantor certified by the Secretary of State (or equivalent Governmental Authority), ) which shall set forth the bylaws same complete name of such Borrower or articles Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan Party and resolutions Borrower or Guarantor, if one is issued in its jurisdiction of the board of directors (incorporation or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated therebyformation);
(d) a certificate signed by the Administrative chief executive officer, chief financial officer, president or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect;
(e) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably satisfactory to Agent, together with such supporting documentation as may be necessary or its counsel appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be reasonably satisfactory to Agent, not more than seven (7) Business Days prior to the date hereof or such earlier date as Agent may agree;
(f) Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Propertyan opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), solely to reflecting the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, transactions contemplated hereby and (ii) all necessary Collateral Access Agreements;
the Disclosure Letter attaching the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (eon a consolidated basis) prepared on a monthly basis for the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect period through the security interest end of the Administrative Agent 2009 Fiscal Year and thereafter, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the Collateral, (ii) results and assumptions set forth in all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(h) Adjusted Excess Availability as determined by Agent, as of the Closing Date, shall be not less than $12,000,000 after giving effect to the Plan of Reorganization, the initial Loans made or to be made, the Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that upon such filings and recordations, the Administrative Agent will have has a valid perfected (A) first priority Lien upon security interest in all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(fj) the Administrative Agent shall have received and reviewed Lien and judgment lien search results for the jurisdiction of organization of each Loan Party; Borrower and the jurisdiction of the chief executive office of each Loan PartyGuarantor in such jurisdictions as Agent shall request, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(gk) the Administrative Agent shall have received a duly completed environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and executed Instrument in form, scope and methodology reasonably satisfactory to Agent, the results of Assignment and Notice of Assignment for each Material Government Contract, which shall be satisfactory to the extent not previously obtained prior to March 1, 2011Agent;
(hl) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the Administrative priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party Borrower and Guarantor (other than HoldingsParent) and each Subsidiary of each Loan Party which certificated shares (owned by any Borrower or similar units) are required to be pledged under the Senior Notes IndentureGuarantor, in each case, case together with an undated stock power for each such certificate powers duly executed in blank by the registered owner thereofwith respect thereto;
(in) Agent shall have received a Borrowing Base Certificate setting forth the Administrative Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan DocumentsFinancing Agreements, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insuredpayee;
(jp) Agent shall have received a written appraisal as to the Administrative Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary such opinion letters of special legal counsel to the Loan Parties, Borrowers and Guarantors with respect to the Loan Parties, which Financing Agreements and such opinions shall permit reliance by successors and permitted assigns of each of the Administrative other matters as Agent and the Lenders subject to customary limitationsmay request;
(kt) the Administrative Agent shall have received a certificatethe audited financial statements of Borrowers and their Subsidiaries for the Fiscal Year ended February 2, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents2008, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language financial statements shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(ou) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined by the Company Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent that sets forth information required Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the Patriot Act chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, including, without limitation, with respect to payment subordination and blockage, remedy standstill periods, cross-default provisions and agreement not to contest the identity of each Loan PartyObligations and the liens granted to Agent under the Financing Agreements, and the name Obligations arising under the Financing Agreements and address of each Loan Party the liens granted to Agent under the Financing Agreements shall be senior and other information that will allow the Administrative Agent or any Lenderfirst in priority, as applicable, in all respects;
(w) all motions and other documents to identify each Loan Party be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the ActPlan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Cases, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agent, including, without limitation, providing for the Administrative Agent discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto;
(qy) substantially simultaneously Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the closing legal due diligence) for which Agent previously did not have actual knowledge of this Agreementsuch issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the Senior Notes corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall have been issued on be reasonably acceptable to the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent; and
(z) Agent shall have received final certified copies of the Senior Notes Documents, an officer’s certificate duly executed by the parties theretochief executive officer, together with all material agreementspresident, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, including certification by a Responsible Officer vice president or treasurer of each of the Company that such documents are in full force Borrowers and effect Guarantors certifying and attesting that, as of the Closing Date;, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any manner.
(raa) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a such other documents and instruments reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on as Agent or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied its counsel may require or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingrequest.
Appears in 2 contracts
Sources: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note note, (iii) counterparts of the Intercreditor Agreement, (iv) counterparts of the U.S. Pledge Agreement and the U.S. Special Pledge Agreement, (v) counterparts or, to the extent required, duly executed copies, of the Canadian Collateral Documents, (vi) counterparts of the Mortgages and (iiivii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011)Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of by the Existing Term Lenders of their respective financing arrangements with Loan AgreementParties, including, but not limited to, a payoff letterletter executed and delivered by each of the Existing Lenders, as applicable, in respect of their respective financing arrangements with the Loan Parties (including, to the extent applicable, delivery of cash collateral and/or backstop letters of credit with respect to any outstanding letters of credit), and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under each of the Existing Term Loan Agreement Lenders, as applicable, of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor debtor; (B) PPSA terminations or discharges for all PPSA financing statements or registrations previously filed with respect to any such interests that do not constitute permitted Liens, filed against any Borrower or Guarantor, as debtor; and (BC) satisfactions and discharges of any mortgages, deeds of trust trust, hypothecs or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan Documents, and the Administrative Agent shall have received all information and copies of all documents, which the Administrative Agent may reasonably have requested in connection therewith and, where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified by appropriate corporate officers of Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 2 contracts
Sources: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011)Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan AgreementFacility, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender each of the lenders under the Existing Term Loan Agreement Facility of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsDocuments shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer all consents, approvals, waivers, acknowledgments and other agreements from third persons (including any Governmental Authorities) which the Administrative Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and Liens upon the Collateral or to effectuate the provisions or purposes of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), and the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the LendersCollateral Access Agreements;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 2 contracts
Sources: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of by the Existing Term Loan Agreement, including, but not limited to, a payoff letter, Lenders of their respective financing arrangements with Borrowers and (ii) Guarantors and the termination and release by ▇▇▇▇▇ Fargo it or them, as lender under the Existing Term Loan Agreement case may be, of any interest in and to any assets and properties of each Loan PartyBorrower and Guarantor securing such financing arrangements, duly authorized, executed and delivered by it or each of them, including, but not limited to, (Ai) UCC termination statements for all UCC financing statements relating to such interests previously filed by it or any of them or their predecessors, as secured party and any Loan PartyBorrower or Guarantor, as debtor debtor; and (Bii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt securing such financing arrangements by any Loan Party Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(cb) the Loan Parties shall have adopted all requisite corporate entity action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be reasonably satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite entity action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where reasonably requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate entity officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and certificates such document as shall set forth the organizational identification number of good standing each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(ic) no material adverse change shall have occurred in the state business, properties, results of organization, operations or financial condition of Borrowers and Guarantors (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authoritytaken as a whole), since the bylaws date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) or articles of each Loan Party and resolutions since December 31, 2008 (the date of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated therebymost recent audited financial statements);
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Propertyconsents, solely to the extent such consent is waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect the Administrative Agent’s its security interests in and Lien Liens upon such Intellectual Propertythe Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, and (ii) all necessary including, without limitation, Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest Excess Availability as determined by Agent, as of the Administrative Agent in the Collateraldate hereof, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other less than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately $40,000,000 after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distributioninitial transactions hereunder;
(mf) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory theretoto Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Agent shall be the bank’s customer with respect to such deposit account as Agent may specify); provided, that, with respect to Deposit Account Control Agreements from depository banks where accounts are maintained as of the closing date of the Credit Facility, the failure to deliver such Deposit Account Control Agreements, other than as to the principal concentration accounts, shall not be a condition of closing so long as Borrowers shall have used commercially reasonable efforts to obtain such agreements prior to closing and to the extent not delivered prior to the closing date of the Credit Facility, Agent shall receive the same within thirty (30) days after the date of the closing of the Credit Facility (or such later date as Agent may thereafter agree).
(g) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the First Priority Collateral (and a perfected security interest in all other Collateral having the priority for such Collateral required hereunder) in each case subject only to Permitted Liens permitted to have priority hereunder;
(h) Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Agent;
(i) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(j) Agent shall have received (i) an opening pro forma balance sheet opinion of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, (ii) projected pro forma an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., General Counsel of FGI, and (iii) an opinion from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Gold, Connecticut local counsel to FGI, each in form and substance satisfactory to Agent;
(k) Agent shall have received the Solvency Certificate and all financial budgets for Holdings and its Subsidiaries after giving effect to the Transactionsstatements attached thereto as exhibits;
(l) Agent shall have received, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to Agent, (i) copies of documentation for the Administrative Agent Senior Notes, which documentation shall include the Senior Notes Indenture and all exhibits and schedules thereto, and (ii) evidence of all consents and not inconsistent with information provided approvals (if any) required pursuant to the Lenders prior to terms of the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;Senior Notes Indenture.
(om) the Administrative Agent shall Senior Notes will have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party been issued in accordance with the Actterms and conditions of the Senior Notes Indenture without any waiver, modification or consent thereunder that is materially adverse to Lenders (as reasonably determined by Agent) unless approved by Agent, and FGI shall have received the net proceeds from the Senior Notes on the date of closing of the Credit Facility substantially contemporaneously with the initial borrowing of Revolving Loans; and
(n) the Intercreditor Agreement, and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent, in their respective forms heretofore furnished to Agent or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingAgent.
Appears in 2 contracts
Sources: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the applicable Issuing Lender Banks to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011)Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan AgreementFacility, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under letter for the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental AuthorityFacility;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsDocuments shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) no material adverse change or material adverse effect, in either case, shall have occurred in the business, operations, financial condition, liabilities (whether actual or contingent) or properties of the Borrowers and their Subsidiaries, taken as a whole, since December 31, 2008;
(e) the Administrative Agent or its counsel shall have received:
(i) (A) an appraisal of the Loan Parties’ Inventory, in form and substance reasonably satisfactory to the Administrative Agent, ; and (iB) all consents a completed a field review of the Records and such other information with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) as the Administrative Agent shall have received may reasonably require to determine the amount of Loans available to the Borrowers (i) all filings including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and recordations that are necessary to perfect Inventory through the security interest Closing Date and test counts of the Administrative Agent Inventory in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably a manner satisfactory to the Administrative Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that upon such filings and recordations, will enable the Administrative Agent will have a valid perfected to accurately identify and verify the Collateral), the results of which, in each case described in the preceding subclauses (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party), which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;Agent in all material respects; and
(gii) the Administrative Agent shall have received (A) a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, bring-down field exam with respect to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, Collateral in form and substance substance, and with results, reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (DB) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000300,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) transactions contemplated by this Agreement to occur on the Closing Date and the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distributioninitial transactions hereunder;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 1 contract
Sources: Loan and Security Agreement (Mohawk Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation On the Closing Date, all obligations of Intermet hereunder incurred prior to such date (including, without limitation, Intermet's obligations to reimburse the reasonable fees and expenses of counsel to the Agent and any fees and expenses payable to the Agent, the Co-Agents, the Lenders to make and their Affiliates as previously agreed with Intermet), shall have been paid in full, and the initial Loans or of Issuing Lender to issue Agent shall have received the initial Letters of Credit hereunder is subject following, in form and substance reasonably satisfactory in all respects to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedentAgent:
(a) the Administrative Agent shall have received (i) duly executed counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent duly executed Revolving Credit Notes evidencing the Commitments and the duly executed Bid Facility Notes;
(c) the duly executed Guaranty Agreement;
(d) certificate of Intermet in substantially the form of Exhibit I attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company officer) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any Foreign Subsidiary, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Pledge Agreements;
(f) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company officer) certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(g) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Foreign Subsidiary) certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Foreign Subsidiary) of the jurisdiction of incorporation or organization of such Credit Party;
(h) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have receivedexpired;
(i) an internally prepared draft of Intermet's consolidated financial statements for the fiscal period ending June 30, 1996, certified by the chief financial officer of Intermet;
(j) notice to, and acknowledgment by, the exiting lenders pursuant to the Prior Credit Agreement to accept payment in full of all obligations outstanding under the Prior Credit Agreement;
(k) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, Foreign Plans, and other compensation and employee benefit plans;
(l) certificates, reports, environmental audits and investigations, and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(m) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(n) a summary, set forth in format and detail reasonably acceptable to the Agent, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(o) the favorable opinion of Dickinson, Wright, Moon, Van Dusen & Free▇▇▇, ▇▇unsel to the Credit Parties, substantially in the form of Exhibit J-1 addressed to the Agent, the Co-Agents and each of the Lenders and the favorable opinion of Kilp▇▇▇▇▇▇ & ▇ody, special Georgia counsel to the Credit Parties, substantially in the form of Exhibit J-2 addressed to the Agent, the Co-Agents and each of the Lenders;
(p) consent from Prudential to the execution and delivery of this Agreement in form and substance satisfactory to the Administrative Agent, Agent and the Required Lenders; and
(iq) all releases, terminations corporate proceedings and such all other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings legal matters in connection with this Agreement the authorization, legality, validity and the other Loan Documents, and the Administrative Agent shall have received all information and copies of all documents, which the Administrative Agent may reasonably have requested in connection therewith and, where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified by appropriate corporate officers of Governmental Authority (and including a copy enforceability of the certificate of incorporation or formation of each Loan Party which Credit Documents shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) the Administrative Agent or its counsel shall have received, be reasonably satisfactory in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the Required Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Intermet Corp)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or and of Issuing Lender Bank to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received evidence that:
(i) Borrowers have received not less than $250,000,000 in cash as an equity contribution from the CD&R Investors in exchange for Equity Interests in the form of preferred stock of Parent, on terms and conditions substantially as provided in the Investment Documents or otherwise reasonably acceptable to Agent;
(ii) a portion of the existing Term Loan Debt shall have been repaid, so that after giving effect to all payments in respect of the Term Loan Documents, the outstanding principal balance of the Term Loan Debt thereunder will not exceed $150,000,000 as of the date hereof;
(iii) the Administrative Agent shall receive, substantially concurrently with the satisfaction of the other conditions precedent set forth in this Section 4.1, evidence reasonably satisfactory to it, that the Parent shall have accepted for redemption the tender of Convertible Notes in an aggregate principal amount not less than $171,000,000 and placed sufficient funds in a segregated account to pay the maximum consideration necessary to redeem all of the Convertible Notes not so redeemed pursuant to the terms of the Indenture;
(b) Agent shall have received (i) counterparts true, complete and correct copies of this Agreementthe Investment Documents and the transactions provided for therein shall have been consummated, (ii) for or substantially concurrently with the account of each Lender requesting a promissory noteinitial Loans hereunder shall be consummated, a Note and (iii) counterparts of all other Loan substantially in accordance with the Investment Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming material conditions precedent to the requirements hereunder consummation of such transactions set forth in the Investment Documents shall have been satisfied or waived;
(c) Agent shall have received true, complete and thereunder and executed by a duly authorized officer or director of each party thereto or correct copies of the general partner of Term Loan Documents (including any partnership party amendment or amendment and restatement thereof on or about the date hereof, but excluding any Mortgages executed and delivered after the date hereof), as executed and delivered by the parties thereto, and in each case which shall be in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(bd) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan Intercreditor Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or the Term Loan Agent for itself and on behalf other Term Loan Lenders and acknowledged by each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party Borrower and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental AuthorityGuarantor;
(ce) the Loan Parties shall have adopted all requisite corporate resolutions or equivalent action by Borrowers and proceedings Guarantors in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be reasonably satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies such resolutions or records of all documentsequivalent action, which the Administrative Agent may reasonably have requested in connection therewith and, certified where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified counsel by appropriate corporate officers of Governmental Authority (Borrowers and including Guarantors and a copy of the certificate of incorporation or formation of each Loan Party Borrower and Guarantor certified by the applicable Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein herein;
(f) Agent shall have received a certificate of each Borrower and certificates Guarantor, dated the Closing Date, as to the incumbency and signature of good standing the officers of such Borrower or Guarantor executing any of the Financing Agreements, reasonably satisfactory in form and substance to Agent executed by a Responsible Officer and the Secretary or any Assistant Secretary of such Borrower or Guarantor;
(g) No material adverse change shall have occurred in the business, operations or assets of Borrowers or Guarantors since November 2, 2008 and no change or event shall have occurred which would impair in any material respect the ability of any Borrower or Guarantor to perform its payment obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral for itself and for the benefit of the Secured Parties;
(h) Agent shall have completed an updated field review of the Records (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory), the results of which shall be consistent in all material respects with the information received in the prior field examinations conducted by Agent taken as a whole or to the extent not consistent shall be otherwise reasonably satisfactory to Agent, not more than five (5) Business Days prior to the date hereof or such earlier date as Agent may agree;
(i) the state of organizationAgent shall have received all consents, waivers, acknowledgments and other agreements (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real propertyother than Collateral Access Agreements), in each caseform and substance reasonably satisfactory to Agent, certified by from third persons necessary in order to permit, protect and perfect the Secretary Liens of State (Agent upon the Collateral or equivalent Governmental Authority), to effectuate the bylaws provisions or articles purposes of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents this Agreement and the transactions contemplated thereby)other Financing Agreements;
(dj) Borrowers and Guarantors shall have used commercially reasonable efforts to obtain Collateral Access Agreements (it being understood that Borrowers shall not be required to incur any expense, provide any security or agree to any adverse term or condition exclusively and directly required in order to obtain such Collateral Access Agreement) and to the Administrative extent not delivered prior to the date hereof Borrowers shall continue to use such efforts hereafter to obtain such Collateral Access Agreements for a reasonable period thereafter, and in any event not more than thirty (30) days after the date hereof;
(k) Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account as contemplated by Section 6.6 hereof, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be, for each of the deposit accounts of Borrowers and Guarantors, including the Concentration Account and the deposit account(s) used for Qualified Cash, but excluding (i) any deposit accounts where the balance is, and is reasonably anticipated at all consents times to be, less than $100,000, but only to the extent that the aggregate amount of funds in all such deposit accounts is less than $500,000, (ii) any deposit account that is specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Borrower’s or Guarantor’s employees, (iii) any disbursement account, (iv)any account containing collateral to secure the obligations of Borrowers and Guarantors with respect to Intellectual Propertythe Existing Letters of Credit, solely and (v) the account at Wachovia Securities Special Equities Group in the NCI Building Systems, Inc., account number [intentionally omitted], to the extent that no new deposits are made in such consent is necessary or desirable to perfect account after the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;date hereof.
(el) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings as of the date hereof and recordationsafter giving effect to the application of proceeds of the initial Revolving Loans, the Administrative Agent will have a valid perfected (A) first priority Lien upon all restructuring of the ABL Priority Collateral Term Loan Documents, the repayment of a portion of the Convertible Notes and the establishment of the Convertible Note Account for the remaining balance) and the other Transactions and after provision for payment of all fees and expenses of the Transactions (i) the sum of Excess Availability plus unrestricted cash and Cash Equivalents of Borrowers (other than Qualified Cash) shall be not less than $90,000,000 and (Bii) second priority Lien upon all the sum of the Senior Notes Priority Collateral;aggregate amount of Loans and Letters of Credit requested and made or outstanding as of the Closing Date shall not exceed $20,000,000.
(fm) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Partyevidence, which search results shall be in form and substance reasonably satisfactory to Agent, that Agent has valid and perfected first priority security interests in all of the Working Capital Priority Collateral (as defined in the Intercreditor Agreement) and valid, perfected second priority security interests in all of the Term Loan Priority Collateral (to the extent provided herein), except, in each case, as to (i) Excluded Property, (ii) priority, subject to Permitted Liens, to the extent (in the case of Working Capital Priority Collateral (as defined in the Intercreditor Agreement)) that such liens have priority over the liens of Agent under applicable law or under the terms of a written agreement to which Agent is a party, (iii) any deposit accounts, to the extent that Agent has not required a Deposit Account Control Agreement pursuant to the terms hereof, (iv) Intellectual Property constituting Collateral, until the filings identified in Section 8.14 are made and accepted, and (v) all Real Property constituting Collateral, if Administrative Borrower has used commercially reasonable efforts to provide the Mortgages but completion thereof may not be accomplished on the Closing Date, then delivery of the Mortgages shall not constitute a condition precedent to the Closing Date if the Administrative Borrower agrees to deliver or cause to be delivered the Mortgages, and takes or causes to be taken such other actions to as may be reasonably necessary to perfect the security interests of such Mortgages;
(n) Agent shall have received and reviewed UCC, tax and judgment lien search results for the location of each Borrower and Guarantor (determined in accordance with the Uniform Commercial Code of the applicable jurisdiction and any other applicable law) and all counties and provinces in which property or assets of Borrowers and Guarantors are located, which search results shall not disclose any Liens other than the Permitted Liens;
(o) Agent shall have received, in similar form as and to the extent received as of the Closing Date by the Term Loan Agent, a title insurance policy issued by a title insurance company and to the extent acceptable to Term Loan Agent;
(gp) the Administrative Agent shall have received a duly completed borrowing request, if applicable, and executed Instrument a Borrowing Base Certificate setting forth the Loans and Letters of Assignment and Notice Credit available to Borrowers as of Assignment for each Material Government Contract, the last day of the most recent month ended prior to the extent not previously obtained prior date hereof as completed in a manner reasonably satisfactory to March 1Agent and duly authorized, 2011executed and delivered on behalf of Borrowers;
(hq) the Administrative Agent shall have received reasonable evidence (including confirmation by any updates or modifications to the Senior Notes Agent) that the Senior Notes projected financial statements of Borrowers and Guarantors previously delivered to Agent has received originals on October 14, 2009 based on actuals as of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes IndentureAugust 2, 2009, in each case, together containing information that is reasonably satisfactory to Agent and in a form consistent with an undated stock power for each such certificate duly executed in blank the information received by Agent and Lenders prior to the registered owner thereofdate hereof, and otherwise reasonably satisfactory to Agent;
(ir) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan DocumentsFinancing Agreements, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insuredpayee;
(js) the Administrative Agent shall have received, each in form and substance reasonably satisfactory to the Administrative Agent, customary the following opinion letters of counsel(s) to Borrowers and Guarantors:
(i) the executed legal opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, special legal New York counsel to CD&R Associates VIII, Ltd., the Loan Partiesgeneral partner to ▇▇▇▇▇▇▇, with respect to the Loan PartiesDubilier & Rice Fund VIII, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitationsL.P.;
(kii) the Administrative Agent shall have received a certificateexecuted legal opinion of ▇▇▇▇▇▇▇▇, in form ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to NCI Systems, Inc. and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and ▇▇▇▇▇▇▇▇▇-Ceco II Corporation;
(iii) immediately after giving effect the executed legal opinion of Holland & ▇▇▇▇ LLP, special Nevada counsel to this Agreement NCI Group, Inc.; and
(including iv) to the initial extensions of credit hereunder), extent received by the other Term Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and Agent as of the Closing Date, except the executed legal opinion of counsel to the extent that such representations and warranties expressly relate solely owner of the Real Property subject to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are SolventMortgage;
(lt) the Administrative Agent Agents and Lenders shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of all fees and expenses reasonably required to be paid or delivered by Borrowers to them in respect of the Transactions, (B) the initial Revolving Loans made Transaction on or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto)fees referred to in Section 3.2; (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;and
(ou) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided the other Financing Agreements to be executed and delivered on the Closing Date as duly executed and delivered by the Company that sets forth information required by parties thereto to Agent. Without limiting the Patriot Act including, without limitation, generality of the identity provisions of each Loan Party, the name and address Section 14.3 for purposes of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance determining compliance with the Actconditions specified in this Section 4.1, in form and substance each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative a Lender unless Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that notice from such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day Lender prior to the Closing Datedate hereof specifying its objection thereto. The Administrative execution and delivery hereof by Lenders hereunder shall conclusively be deemed to constitute an acknowledgment by Agent shall notify the Administrative Borrower and the Lenders each Lender that each of the conditions specified precedent set forth in this Section 5.1 4.1 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived and that the Closing Date has occurred, and by such notice, absent manifest error, shall be conclusive and bindingPerson.
Appears in 1 contract
Sources: Loan and Security Agreement (Nci Building Systems Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Bank to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of by the Existing Term Loan Agreement, including, but not limited to, a payoff letter, Lenders of their respective financing arrangements with Borrowers and (ii) the termination Guarantors and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any security interest in and to any assets and properties of each Loan PartyBorrower and Guarantor that is not a lien indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, duly authorized, executed and delivered by it or each of them, including, but not limited to, (Ai) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and with respect to any Loan Partysuch interests that is not a liens indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, filed against any Borrower or Guarantor, as debtor debtor; (ii) PPSA terminations or discharges for all PPSA financing statements previously filed with respect to any such interests that is not a lien indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, filed against any Borrower or Guarantor, as debtor; and (Biii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it Borrower or any of themGuarantor that is not a liens indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, in form acceptable for recording with the appropriate Governmental Authority;
(cb) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation incorporation, articles of association, certificate of formation, limited liability agreement, limited partnership agreement or formation other organizational documents of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein Borrower and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, Guarantor certified by the Secretary of State (or equivalent Governmental Authority)) which shall set forth the same complete corporate, limited liability or partnership name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the bylaws or articles organizational identification number of each Loan Party Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets or business of Borrowers since the date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and resolutions no change or event shall have occurred which would materially impair the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the board other Financing Agreements to which it is a party or of directors (Agent or equivalent governing body) of each Loan Party approving and authorizing any Lender to enforce the Loan Documents and Obligations or realize upon the transactions contemplated thereby)Collateral;
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest completed a field review of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral Records and such other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, information with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns Collateral as Agent may require to determine the amount of each of the Administrative Agent and the Lenders subject Loans available to customary limitations;
Borrowers (k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, current perpetual Inventory records and/or roll-forwards of Accounts through the identity date of each Loan Partyclosing and test counts of the Inventory in a manner satisfactory to Agent, the name and address of each Loan Party together with such supporting documentation as may be necessary or appropriate, and other documents and information that will allow enable Agent to accurately identify and verify the Administrative Agent or any LenderCollateral), as applicable, to identify the results of which in each Loan Party in accordance with the Act, in form and substance case shall be satisfactory to the Administrative Agent and the Lenders;
Agent, not more than three (q3) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day Days prior to the Closing Date. The Administrative date hereof or such earlier date as Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.may agree;
Appears in 1 contract
Sources: Loan and Security Agreement (American Biltrite Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or and of Issuing Lender the LC Issuer to issue the initial Letters Letter of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedentprecedent on or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, ‘PDF’ format or telecopies (followed promptly by originals), each properly executed by a Responsible Officer of the signing Loan Party unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent shall have received Agent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowers;
(ii) for Notes executed by the account Borrowers in favor of each Lender requesting a promissory note, a Note and Notes;
(iii) counterparts a security agreement in substantially the form of all Exhibit G-1, a collateral assignment of contracts in the form of Exhibit G-2 and an intellectual property security agreement in the form of Exhibit G-6 (together with each other Loan Documents security agreement and all instruments and documents (including, without limitation, the Information Certificate) required security agreement supplement delivered pursuant to be delivered hereunderSection 6.12, in each case conforming as amended, collectively, the “Security Agreement”), duly executed by each Loan Party, and a pledge agreement (the “Pledge Agreement”) duly executed by the Parent in substantially the form of Exhibit H, together with (subject to the requirements hereunder and thereunder and executed by a duly authorized officer or director provisions of each party thereto or of Section 4.1(m)):
(A) certificates representing the general partner of any partnership party thereto, and pledged Equity Interests referred to in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review (if certificated) accompanied by undated stock powers executed in blank,
(B) stamped receipt copies of proper financing statements, duly filed on or about January 21, 2011 are satisfactory to before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Encumbrances created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement, and the Pledge Agreement,
(subject C) completed requests for information, dated on or before the date of the initial Credit Extension, listing the financing statements referred to modifications satisfactory in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent and may deem reasonably necessary or desirable in order to perfect the Borrowers Encumbrances created thereby,
(E) account control agreements, duly executed by the appropriate parties, with respect to reflect changes all bank accounts of the Loan Parties, other than bank accounts with ▇▇▇▇▇ Fargo,
(F) copies of the assigned agreements subject to the terms collateral assignment of contracts referred to above, together with any reasonably necessary consents to such assignment, duly executed by each party to such assigned agreements other than the Transaction agreed to by Loan Parties, and
(G) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Encumbrances created under the Security Agreement has been taken (including receipt of duly executed payoff letters and the Borrowers subsequent to January 21, 2011UCC-3 termination statements);
(biv) the Fee Property Security Documents;
(v) Title Policies, issued by the Title Company, insuring the liens of the Fee Property Security Documents as a valid first liens upon the fee interests of each of the Fee Properties, subject only to the Permitted Encumbrances. Each Title Policy when issued shall be reasonably acceptable to Administrative Agent following a review of all title exception documents cited in therein and shall have receivedspecifically include by endorsement or affirmative coverage (if permitted by Administrative Agent in its discretion), an ALTA 9 comprehensive endorsement, a deletion of creditors’ rights exception (if available), and such other endorsements and coverages as Administrative Agent may reasonably require, provided such endorsements and coverages are available;
(vi) the Subordination Agreement;
(vii) Landlord Waivers as required by and in form and substance satisfactory to the Administrative Agent, executed by each of the Borrowers’ lessors, unless waived by the Administrative Agent;
(iviii) all releasessuch certificates of resolutions or other action, terminations and such incumbency certificates and/or other documents certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably request to evidence and effectuate require evidencing the termination of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties authority of each Loan PartyParty to consummate the transactions contemplated hereby and the identity, duly authorized, executed authority and delivered by it or capacity of each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, Responsible Officer thereof authorized to act as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings a Responsible Officer in connection with this Agreement and the other Loan Documents, Documents to which such Loan Party is a party or is to be a party;
(ix) such documents and the Administrative Agent shall have received all information and copies of all documents, which certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have requested in connection therewith and, where requested by a Material Adverse Effect;
(x) an opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP counsel to the Loan Parties addressed to the Administrative Agent or its counseland each Lender, as to the matters set forth in Exhibit I and such other matters concerning the Loan Parties shall have used their commercially reasonable efforts and the Loan Documents as the Majority Lenders may reasonably request;
(xi) opinion(s) of local counsel to cause such documents the Loan Parties (as applicable) with respect to be certified by appropriate corporate officers of Governmental Authority (and including a copy the enforceability of the Fee Property Security Documents in their local jurisdictions and such other matters as the Administrative Agent may reasonably require;
(xii) a certificate of incorporation or formation a Responsible Officer of each Loan Party which shall set forth either (A) attaching copies of all consents, licenses and approvals required in connection with the same complete corporate name of execution, delivery and performance by such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where validity against such Loan Party owns material real propertyof the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xiii) a certificate signed by a Responsible Officer of each case, certified by Borrower certifying that the Secretary of State conditions specified in paragraphs (or equivalent Governmental Authorityd), (e), (f), (g), (i), (k), (l), (m) and (n) and clause (A) of paragraph (h) of this Section 4.1 have been satisfied;
(xiv) certificates attesting to the bylaws or articles Solvency of each Loan Party before and resolutions of after giving effect to the board of directors Acquisition, from its chief financial officer;
(or equivalent governing bodyxv) of each Loan Party approving and authorizing evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xvi) evidence that the Existing Credit Agreement and all outstanding Indebtedness for money borrowed of the Borrowers, other than the Indebtedness set forth on Schedule 8.1(e) attached hereto, has been, or concurrently with the transactions contemplated thereby);
(d) hereby is being, paid and all Encumbrances securing such Indebtedness have been, or concurrently with the Administrative Agent transactions contemplated hereby are being, released or its counsel shall have received, in form and substance reasonably satisfactory assigned to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest which requirement may be satisfied by delivery of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be payoff letters in form and substance reasonably satisfactory to the Administrative Agent;
(gxvii) a certificate of a Responsible Officer of the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) Parent certifying that the Senior Notes Agent Parent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactorytrue and correct copies of the Asset Purchase Agreement and all schedules, documents and agreements ancillary thereto as in effect on the Closing Date;
(nxviii) with respect to any Fee Property, such other, papers, instructions, documents, instruments or certificates as the Title Company may reasonably require for the issuance of Title Policies;
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent shall have receivedAgent, in form and substance the LC Issuer or any Lender reasonably satisfactory thereto, may require;
(ixx) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance a certificate reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) , for benefit of itself and the Administrative Agent shall have completedLenders, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company Borrowers that sets forth information required by the Patriot Act including, without limitation, including the identity of each Loan PartyBorrower, the name and address of each Loan Party Borrower and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party Borrower in accordance with the Patriot Act; and
(xxi) all amendments to the Junior Subordinated Debt Documents necessary to replace references to M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank with references to the Administrative Agent, and any other amendments reasonably requested by the Administrative Agent.
(b) All fees required to be paid to the Administrative Agent, the Lead Arranger and the Lenders on or before the Closing Date shall have been paid or will be paid on the Closing Date from the proceeds of the Loans pursuant to a closing statement directive from the Borrowers to the Administrative Agent.
(c) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent) or will be paid on the Closing Date from the proceeds of the Loans pursuant to a closing statement directive from the Borrowers to the Administrative Agent.
(d) There shall not have occurred, since December 2, 2007, any change, effect or circumstance that would constitute a “Material Adverse Effect” as that term is defined in the Asset Purchase Agreement.
(e) The Borrowers shall have delivered to the Administrative Agent (i) a certified copy of the final order by the Bankruptcy Court approving the Acquisition on the Closing Date, in form reasonably satisfactory to counsel to the Administrative Agent, and (ii) a certificate of no appeal issued by the clerk of such court.
(f) The Acquisition shall have been consummated (or substantially simultaneously with the borrowing of the initial Loans on the Closing Date shall be consummated) (i) substantially in accordance with the Summary of Sources and Uses and (ii) in accordance with the terms of the Asset Purchase Agreement without giving effect to (x) any amendments or waivers to the Asset Purchase Agreement or (y) the delivery of any updated disclosure schedules to the Asset Purchase Agreement, in any case to the extent that such amendments, waivers or updated disclosure schedules (taken as a whole) are material and adverse to the interests of the Lenders and not consented to in writing by the Administrative Agent.
(g) After giving effect to the Acquisition, the Borrowers will have outstanding no Indebtedness for money borrowed other than the Loans, the Junior Subordinated Debt and the Indebtedness set forth on Schedule 8.1(e).
(h) The Administrative Agent shall have received the Borrowers’ projections for each of the five Fiscal Years following the Closing Date, including consolidated balance sheets and statements of income, retained earnings and cash flows in form and substance satisfactory to the Administrative Agent Agent.
(i) After giving effect to the consummation of the Acquisition, the making of any Loans, the issuance of any Letters of Credit, and the Lenders;application of proceeds of the foregoing (including the payment of all fees and expenses in connection therewith) on the Closing Date, substantially in accordance with the Summary of Sources and Uses, the sum of (x) the Borrowers’ unrestricted cash and Qualified Investments, plus (y) the excess of the Total Revolving Credit Commitment over Total Revolving Credit Outstandings shall be at least $2,000,000.
(qj) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall not have received final certified copies become aware, after November 30, 2007, of any new or inconsistent information or other matter not previously disclosed to it relating to the Borrowers or the transactions contemplated by the Commitment Letter dated as of January 3, 2008 addressed to the Parent that the Administrative Agent, in its reasonable business judgment, deems material and adverse relative to the information or other matters disclosed to it prior to such date, including matters covered by any third-party diligence reports, background checks or other financial, accounting, insurance or legal review.
(k) The representations made by the ▇▇▇▇▇▇▇▇’▇ Buffet, Inc. in the Asset Purchase Agreement shall be true and accurate on and as of the Senior Notes DocumentsClosing Date (but without giving effect to the delivery of any amendments, duly executed waivers or updated disclosure schedules pursuant to the Asset Purchase Agreement to the extent that such amendments, waivers or Updated Schedules are not consented to in writing by the parties thereto, together with Administrative Agent).
(l) The representations and warranties contained in Section IV and all material agreements, instruments other representations and warranties made by the Borrowers under any other documents delivered in connection therewith Loan Document shall be true and accurate on and as the Administrative Agent shall reasonably request, including certification by a Responsible Officer of the Company that such documents are in full force Closing Date as though made at and effect as of the Closing Date;.
(rm) All documents and instruments required to perfect the Loan Parties Administrative Agent’s security interest in the Collateral shall have received governmentalbeen executed and delivered and, shareholder if applicable, be in proper form for filing, in each case as contemplated by the foregoing provisions of this Section 4.1, and third party consents none of the Collateral will be subject to any other pledges, security interests or liens except for Permitted Encumbrances.
(includingn) No litigation, arbitration, proceeding or investigation shall be pending or, to the extent applicableBorrowers’ knowledge, consents from third parties with respect to Material Contracts) and approvals necessary threatened which questions the validity or legality of the transactions contemplated by any Loan Document or the Asset Purchase Agreement or seeks a restraining order, injunction or damages in connection with therewith, or which, in the Transactions unless reasonable judgment of the absence of any such consent Administrative Agent, might adversely affect the transactions contemplated hereby or approval could not thereby or might reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Star Buffet Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation At the time of the Lenders to make making of the initial Loans or and issuance of Issuing Lender to issue the initial Letters of Credit hereunder is subject on the Closing Date, all obligations of Borrower hereunder incurred prior to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter initial Loans and Letters of Credit (including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of each of counsel to the following conditions precedentAgent and any fees and expenses payable to the Agent or its Affiliates as previously agreed with Borrower, including without limitation, the fees set forth in the Fee Letter), shall have been paid in full, and the Agent shall have received the following, in form and substance reasonably satisfactory in all respects to the Agent:
(a) the Administrative Agent shall have received (i) duly executed counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative duly completed Revolving Credit Notes evidencing the Revolving Credit Commitments;
(c) a duly executed Note Assignment and original Intercompany Loan Documents, duly endorsed to the Agent, with respect to each Intercompany Loan existing on the Closing Date;
(d) certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws of such entities;
(f) certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State and by the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party and each other jurisdiction where such Credit Party's ownership of property or the conduct of its business require it to be qualified, except where a failure to be so qualified would not have a Materially Adverse Effect;
(g) certificate of Borrower in substantially the form of Exhibit D attached hereto and appropriately completed;
(h) the favorable opinion of Alst▇▇ & ▇ird, counsel to the Credit Parties, in the form of Exhibit E, addressed to the Agent and each of the Lenders;
(i) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have receivedexpired;
(j) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(k) certificates, reports, environmental audits and investigations, and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) evidence satisfactory to the Agent and the Lenders that upon the funding of the initial Loans hereunder, the Existing Indebtedness will be paid in full and terminated and that the holders thereof will release all Liens securing the Existing Indebtedness;
(n) a summary, set forth in format and detail reasonably acceptable to the Agent, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(o) evidence assuring the Agent and the Lenders that all corporate proceedings and all other legal matters relating to the Credit Parties in connection with the authorization, legality, validity and enforceability of the Credit Documents are in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental AuthorityLenders;
(cp) review of the Loan Parties subordination provisions in all Subordinated Debt of the Borrower shall have adopted all requisite corporate action been completed and proceedings in connection with this Agreement and the other Loan Documents, and the Administrative Agent shall have received all information and copies of all documents, which the Administrative Agent may reasonably have requested in connection therewith and, where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified by appropriate corporate officers of Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results provisions shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date)Lenders; provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the Lenders;and
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final a certified copies copy of the Senior Notes Documents, duly executed by Seller Note and the parties thereto, together with all material agreements, instruments documents governing the same and other the documents delivered in connection therewith as governing the Administrative Agent shall reasonably request, including certification by a Responsible Officer issuance of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingBuyer Note.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of by the Existing Term Loan Agreement, including, but not limited to, a payoff letter, Lenders of their respective financing arrangements with Borrowers and (ii) Guarantors and the termination and release by ▇▇▇▇▇ Fargo it or them, as lender under the Existing Term Loan Agreement case may be, of any interest in and to any assets and properties of each Loan PartyBorrower and Guarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan PartyBorrower or Guarantor, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authoritydebtor;
(cb) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and certificates of good standing in (i) such document as shall set forth the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles organizational identification number of each Loan Party Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since the date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and resolutions no change or event shall have occurred which would impair the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the board other Financing Agreements to which it is a party or of directors (Agent or equivalent governing body) of each Loan Party approving and authorizing any Lender to enforce the Loan Documents and Obligations or realize upon the transactions contemplated thereby)Collateral;
(d) the Administrative Agent or its counsel shall have received, in form completed a field review of the Records and substance reasonably satisfactory to the Administrative Agent, (i) all consents such other information with respect to Intellectual Propertythe Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, solely without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the extent date hereof or such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreementsearlier date as Agent may agree;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent this Agreement and the Lenders subject to customary limitationsother Financing Agreements, including, without limitation, Collateral Access Agreements;
(kf) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Excess Availability as determined by Agent, executed by an authorized officer as of the Company certifying that (i) no Material Adverse Effect date hereof, shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately be not less than $2,000,000 after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distributioninitial transactions hereunder;
(mg) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory theretoto Agent, Deposit Account Control Agreements or Investment Property Control Agreement (ias applicable) by and among Agent, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or commodity intermediary where such Borrower or Guarantor has an opening pro forma balance sheet of account, in each case, duly authorized, executed and delivered by such Person and Borrower or Guarantor, as the Borrowers as of the Closing Date prepared after giving effect to the Transactions; case may be (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which or Agent shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, customer with the results and assumptions set forth therein in form and substance reasonably satisfactory respect to the Administrative such account as Agent (and not inconsistent with information provided to the Lenders prior to the Closing Datemay specify); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(oh) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Actevidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Administrative Agent and the LendersCollateral;
(qi) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the Senior Notes Documentschief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, duly executed by the parties thereto, together with all material agreements, instruments which search results shall be in form and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Datesubstance satisfactory to Agent;
(rj) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably written appraisal of the Inventory of Borrowers conducted by an independent appraisal firm acceptable to Agent, and in form, scope and methodology satisfactory funds flow memorandum to Agent, the results of which shall be satisfactory to Agent;
(k) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in connection each case together with stock powers duly executed in blank with respect thereto;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the Transactions setting forth other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(m) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the sources Financing Agreements and uses and accompanied by payment instructions thereforsuch other matters as Agent may request; and
(tn) the Borrower other Financing Agreements and all instruments and documents hereunder and thereunder shall have paid all fees been duly executed and expenses required delivered to be paid hereunderAgent, including without limitation, under the Fee Letter in form and all fees and expenses invoiced on or before the Business Day prior substance satisfactory to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Bank to issue the initial Credit-Linked Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Credit-Linked Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of all Indebtedness of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, Credit Parties (other than Indebtedness permitted under Section 9.9) and (ii) the termination and release by ▇▇▇▇▇ Fargo release, as lender under the Existing Term Loan Agreement case may be, of any interest in and to any assets and properties of each Loan Credit Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (Ai) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor filed; and (Bii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of themCredit Party, in form acceptable for recording with the appropriate Governmental Authority;.
(cb) the Loan Parties shall have adopted all All requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation (or formation foreign equivalent) of each Loan Credit Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Credit Party as is set forth herein and certificates of good standing in (i) such document as shall set forth the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles organizational identification number of each Loan Party and resolutions Credit Party, if one is issued in its jurisdiction of incorporation).
(c) No material adverse change in the business, operations, profits, assets or prospects of the board Borrower and its Subsidiaries, taken as a whole, shall have occurred since the date of directors (the most recent financial statements received by Administrative Agent or equivalent governing body) its latest field examination, if subsequent to the date of each Loan such financial statements, and no pending or threatened litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to any Credit Party approving and authorizing the Loan Documents and the transactions contemplated thereby);shall exist that could reasonably be expected to have a Material Adverse Effect.
(d) Administrative Agent’s completion of its business, legal and environmental due diligence, with results satisfactory to Administrative Agent.
(e) Subject to the terms of Section 9.32, Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which Administrative Agent may deem necessary or desirable in order to permit, protect and perfect Collateral Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements.
(if) all consents Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, Account Control Agreements by and among Administrative Agent, each Credit Party, as the case may be, and each bank where such Credit Party has an account, other than Excluded Deposit Accounts, in each case, duly authorized, executed and delivered by such bank and such Credit Party, as the case may be (or Administrative Agent shall be the bank’s customer with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the deposit account as Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;Agent may specify).
(eg) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Collateral Agent will have has a valid perfected (A) first priority Lien upon security interest in the Priority Collateral and a valid perfected second priority security interest in all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;, subject only to Permitted Liens.
(fh) the Administrative Agent shall have received and reviewed Lien lien and judgment search results for the jurisdiction of organization of each Loan Credit Party; and , the jurisdiction of the chief executive office of each Loan PartyCredit Party and all jurisdictions in which assets of the Credit Parties are located, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;.
(gi) the Administrative Agent shall have received a duly completed and executed Instrument searches of Assignment and Notice ownership of Assignment for each Material Government Contract, to intellectual property in the extent not previously obtained prior to March 1, 2011;appropriate governmental offices of such patent/trademark/copyright filings as requested by Administrative Agent.
(hj) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates the shares of the stock certificates, if any, representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Credit Party and owned by any Credit Party, in each case together with stock powers duly executed in blank with respect thereto have been delivered to the Control Agent.
(other than Holdingsk) Administrative Agent shall have received evidence that all instruments and each Subsidiary chattel paper in possession of each Loan Party which certificated shares (any Credit Party, together with such allonges or similar units) assignments as may be necessary or appropriate to perfect Collateral Agent’s security interest in the Collateral that are required to be pledged delivered under Section 5.2(b), have been delivered to the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;Control Agent.
(il) the Administrative Agent shall have received evidence of insurance coverage and lender’s loss payee endorsements required hereunder and under the other Loan DocumentsFinancing Agreements, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee for casualty insurance, including casualty, liability and additional insured;business interruption insurance.
(jm) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary such opinion letters of special legal counsel to the Loan Parties, Credit Parties (other than ▇▇ ▇▇▇▇▇) with respect to the Loan Parties, which Financing Agreements and such opinions shall permit reliance by successors and permitted assigns of each of the other matters as Administrative Agent may request and the Lenders subject to customary limitations;are customarily required for similar financings.
(kn) the Administrative Agent shall have received a certificateall financial information, in form projections, budgets, business plans, cash flows and substance satisfactory to the such other information as Administrative AgentAgent shall reasonably request, executed by an authorized officer of the Company certifying that including (i) no Material Adverse Effect shall have occurred since December 31projected quarterly consolidated balance sheets, 2010income statements, statements of cash flows and availability of the Credit Parties for the period through the end of the 2007 and 2008 fiscal years, (ii) neither projected annual consolidated balance sheets, income statements, statements of cash flows and availability of Credit Parties through the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as end of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,0002012 fiscal year, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory case as to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as projections described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, clauses (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; and (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement), with the results and assumptions set forth therein in all of such projections in form and substance reasonably satisfactory to Administrative Agent, and (iii) any updates or modifications to the projected financial statements of the Credit Parties previously received by Administrative Agent, in each case in form and substance satisfactory to Administrative Agent.
(o) Administrative Agent (shall be reasonably satisfied with the corporate and not inconsistent capital structure and management of the Credit Parties and with information provided all legal, tax, accounting and other matters relating to the Lenders Credit Parties.
(p) No material misstatements in or omissions from the materials previously furnished to Administrative Agent by the Borrower and its Subsidiaries shall have been made. Administrative Agent shall be satisfied that any financial statements delivered to it fairly present the business and financial conditions of the Borrower and its Subsidiaries.
(q) No defaults or events of default on the Closing Date under the Financing Agreements and the ABL Financing Agreements or on any other material debt or any Material Contract of any Credit Party shall exist.
(r) All conditions precedent to the closing and initial extensions of credit under the ABL Credit Agreement shall have been, or concurrently with the Closing Date and funding of the Loans shall be, satisfied, waived or subject to a post-closing undertaking (ii) the ABL Credit Agreement shall make available to the Borrower not less than $85,000,000 of revolving loan and letter of credit facilities, and (iii) Administrative Agent shall be satisfied that the initial extensions of credit under the ABL Credit Agreement shall have occurred, or will occur concurrently with the initial extensions of credit under this Agreement. Administrative Agent shall have received a copy, certified by the chief financial officer of the Borrower as true and complete, of the ABL Credit Agreement as originally executed and delivered, together with all exhibits and schedules thereto.
(s) At least five (5) Business Days prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate satisfactory thereto for benefit of itself and the Lenders, provided by the Company Borrower that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Partythe Credit Parties, the name and address of each Loan Party the Credit Parties and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party the Credit Parties in accordance with the Patriot Act.
(t) This Agreement and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Administrative Agent, in form and substance satisfactory to Administrative Agent.
(u) Payment by Borrower of all fees and expenses owed by them to the Lenders and Administrative Agent, including, without limitation, payment to Administrative Agent and of the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions fees set forth in the Senior Notes Indenture. The Engagement Letter.
(v) Receipt by Administrative Agent shall have received final certified copies of the Senior Notes Documents, duly executed (a) a statement of sources and uses of funds covering all payments reasonably expected to be made by the parties thereto, together with all material agreements, instruments Borrower and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary its Subsidiaries in connection with the Transactions unless transactions contemplated by the absence Financing Agreements to be consummated on the Closing Date (including, without limitation, the payment in full and termination of any such consent or approval could not reasonably the Existing Credit Agreement with proceeds received from the remarketing of the Borrower’s industrial revenue bonds), including an itemized estimate of all fees, expenses and other closing costs and (b) payment instructions with respect to each wire transfer to be expected to have a Material Adverse Effect;
(s) the made by Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with on behalf of the Transactions Lenders or Borrower and its Subsidiaries on the Closing Date setting forth the sources amount of such transfer, the purpose of such transfer, the name and uses number of the account to which such transfer is to be made, the name and accompanied by payment instructions therefor; andABA number of the bank or other financial institution where such account is located and the name and telephone number of an individual that can be contacted to confirm receipt of such transfer.
(tw) Receipt by Administrative Agent of duly executed copies, certified by an officer of the Borrower shall have paid all fees as true and expenses required to be paid hereundercomplete, of the Senior Subordinated Note Indenture and the Senior Subordinated Notes, including without limitationall exhibits and schedules thereto, under the Fee Letter in form and all fees and expenses invoiced on or before the Business Day prior substance acceptable to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingtheir sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the following is a condition precedent to Agent and Lenders to make making the initial Loans or of Issuing Lender to issue and providing the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedenthereunder:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) such document as shall set forth the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office organizational identification number of each Loan Party, which search results shall be if one is issued in form and substance reasonably satisfactory to the Administrative Agentits jurisdiction of incorporation);
(gb) the Administrative Agent no Material Adverse Effect shall have received a duly completed and executed Instrument occurred since the date of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011Agent’s latest field examination;
(hc) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent this Agreement and the Lenders subject to customary limitationsother Financing Agreements;
(kd) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Excess Availability as determined by Agent, executed by an authorized officer as of the Company certifying that (i) no Material Adverse Effect date hereof, shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately be not less than $50,000,000 after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made on the date hereof and Letters of Credit issued or to be issued on the date hereof in connection with the Transactions and (C) the payment of the Cash Distributioninitial transactions hereunder;
(me) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have receivedreceived evidence, in form and substance reasonably satisfactory theretoto Agent, (i) an opening pro forma balance sheet that Agent has a valid perfected first priority security interest in all of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative AgentCollateral;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 1 contract
Sources: Loan and Security Agreement (Travelcenters of America LLC)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the Issuing Lender Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative The Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of all Indebtedness of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, Parties (other than Indebtedness permitted under Section 9.9) and (ii) the termination and release by ▇▇▇▇▇ Fargo release, as lender under the Existing Term Loan Agreement case may be, of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (Ai) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor filed; and (Bii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of themParty, in form acceptable for recording with the appropriate Governmental Authority;.
(cb) the Loan Parties shall have adopted all All requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to the Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation (or formation equivalent) of each Loan Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) such document as shall set forth the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office organizational identification number of each Loan Party, which search results shall be if one is issued in form and substance reasonably satisfactory to the Administrative Agent;its jurisdiction of incorporation).
(gc) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government ContractSince December 31, to the extent 2006, there not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
having occurred (i) any event, condition, circumstances or change, which has any adverse change in or effect on the Administrative Agent shall have received evidence properties, financial condition or results of insurance and loss payee endorsements required hereunder and under operations of the other Loan Documents, in form and substance reasonably satisfactory Acquired Company or any of its subsidiaries which is material to the Administrative AgentAcquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that the following shall not be considered a Closing Date Material Adverse Effect: (A) changes, events, inaccuracies, circumstances and certificates effects that are caused by or arise out of insurance policies and/or endorsements naming (1) economic or business conditions in the Administrative Agent United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (2) conditions effecting the industry in which the Acquired Company and its subsidiaries compete as loss payee a whole and additional insured;which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the Acquired Company in compliance with the Acquisition Agreement, or (3) changes in laws or GAAP or the enforcement or interpretation thereof, or (C) any effect arising out of a matter disclosed on a Schedule to the Acquisition Agreement; or (ii) any effect that would materially impair the Acquired Company’s, the Buyer’s (as defined in the Acquisition Agreement) or the Stockholders’ (as defined in the Acquisition Agreement) ability to consummate the transactions contemplated by the Acquisition Agreement.
(jd) the Administrative The Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent this Agreement and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificateother Financing Agreements, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, Collateral Access Agreements; provided, that the identity of each Loan Party, the name and address of each Loan Party and other information that foregoing condition will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory be deemed fulfilled to the Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) extent the Loan Parties shall have received governmental, shareholder and third party consents (including, use commercially reasonable efforts to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any obtain such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingagreements.
Appears in 1 contract
Sources: Abl Loan and Security Agreement (U.S. Silica Holdings, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the applicable Issuing Lender Banks to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011)Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan AgreementFacility, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under letter for the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental AuthorityFacility;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsDocuments shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) no material adverse change or material adverse effect, in either case, shall have occurred in the business, operations, financial condition, liabilities (whether actual or contingent) or properties of the Borrowers and their Subsidiaries, taken as a whole, since December 31, 2008;
(e) the Administrative Agent or its counsel shall have received:
(i) (A) an appraisal of the Loan Parties’ Inventory, in form and substance reasonably satisfactory to the Administrative Agent, ; and (iB) all consents a completed a field review of the Records and such other information with respect to Intellectual Property, solely the Collateral as the Administrative Agent may reasonably require to determine the amount of Loans available to the extent such consent is necessary or desirable Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the Closing Date and test counts of the Inventory in a manner satisfactory to perfect the Administrative Agent’s security in and Lien upon , together with such Intellectual Propertysupporting documentation as may be necessary or appropriate, and other documents and information that will enable the Administrative Agent to accurately identify and verify the Collateral), the results of which, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to the Administrative Agent in all material respects; and
(ii) (A) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably satisfactory to the Administrative Agent in all necessary Collateral Access Agreementsmaterial respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $300,000,000, in each case, after giving pro forma effect to the payment of fees and expenses of the transactions contemplated by this Agreement to occur on the Closing Date and the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(ef) the Loan Parties shall have received all governmental, shareholder and third party approvals necessary in connection with the transactions contemplated by this Agreement and the other Loan Documents, and each such approval shall be in full force and effect;
(g) the Borrowers shall have a cash management system in place that is reasonably satisfactory to the Administrative Agent;
(h) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iiiii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral; provided that deposit accounts and securities accounts that are Collateral and (B) second priority Lien upon all shall be subject to the provisions of the Senior Notes Priority CollateralSection 6.3;
(fi) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; Party and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(ij) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(jk) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary an opinion letters letter of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitationsLenders;
(kl) the Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to the Administrative Agent, executed by an authorized the chief financial officer of the Company certifying that (i) to the knowledge of such officer, no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental instrumentality that purports to affect any Loan Party or any transaction contemplated by the Loan Documents, which action, suit, investigation or proceeding could reasonably be expected to have a Material Adverse Effect shall have occurred since December 31, 2010, and (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective datesrespects, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, Subsidiaries taken as a whole, whole are Solvent;
(lm) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as executed Notice of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactoryAccount Designation;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet financial projections prepared by management of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings Company and its Subsidiaries after giving effect to the TransactionsSubsidiaries, which shall will be quarterly for the fiscal first year ending December 31, 2011 after the Closing Date and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent this Agreement (and which will not be inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completedreceived, in form and substance reasonably satisfactory thereto, copies of unaudited financial statements of the Company and its Subsidiaries for each fiscal monthly period ended since December 31, 2008 (including the fiscal monthly period ending at least fifteen (15) Business Days prior to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011the Closing Date);
(p) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, statements demonstrating that the accounts payable of the Company and its Subsidiaries are at a level and in a condition consistent with historical practices;
(q) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information requested by the Administrative Agent that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and table accompanied by payment instructions therefor; andinstructions;
(ts) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, (i) under the Fee Letter and (ii) all other fees and expenses invoiced on or before the Business Day prior to Closing Date, shall have been paid in full in cash or will be paid on the Closing Date; and
(t) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 1 contract
Sources: Loan and Security Agreement (Mohawk Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders Banks to make the initial Loans or of Issuing Lender and to issue the initial Letters Letter of Credit hereunder is shall be subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each fulfillment of the following conditions precedentprecedent on or before the Closing Date in a manner satisfactory to the Banks:
(a) the Administrative Agent Each Bank shall have received the following:
(i) counterparts A copy of resolutions approving this AgreementAgreement and authorizing the transactions contemplated in this Agreement and the other Loan Papers, duly adopted by the Board of Directors of each of the Companies, accompanied by a certificate of the Secretary or Assistant Secretary of the respective Company, dated the date hereof, that such copy is a true and correct copy of resolutions duly adopted at a meeting (which may be held if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company, by conference telephone or similar communications equipment by means of which all persons participating in a meeting can hear each other) of, or by the unanimous written consent of (if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company),the Board of Directors of the respective Company, and that such resolutions have not been amended, modified, repealed, or revoked in any respect, and are in full force and effect as of the date hereof:
(ii) for A certificate of incumbency of all officers of Borrower and each Company who will be authorized to execute or attest this Agreement or any document delivered pursuant hereto on behalf of Borrower or such Company, dated the account date hereof; executed by the Secretary or Assistant Secretary of each Lender requesting a promissory note, a Note and Borrower or such Company.
(iii) counterparts The articles of all other Loan Documents incorporation of Borrower and all instruments each Company certified by the Secretary of State of the state of its incorporation and documents dated a current date.
(includingiv) The bylaws of Borrower and each Company certified by its Secretary or Assistant Secretary.
(v) Certificates of the appropriate government officials of the state of incorporation of Borrower and each Company as to its existence and, without limitationto the extent applicable, good standing and certificates of the Information Certificate) appropriate government officials of each state in which Borrower and each Company is required to qualify to do business and where failure to so qualify could reasonably be delivered hereunderexpected to have a Material Adverse Effect, as to such Person’s qualification to do business and good standing in each case conforming to the requirements hereunder and thereunder and such state, all dated a current date.
(vi) Its Revolving Credit Note duly executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);Borrower.
(bvii) the Administrative Agent shall have receivedA Guaranty Agreement (or ratification thereof, if applicable), in form and substance satisfactory to the Administrative AgentRequired Banks, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by ▇▇▇▇▇ Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, appropriately executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;Companies other than Borrower.
(cviii) The fees due on the Loan Parties shall have adopted all requisite corporate action and proceedings Closing Date in connection accordance with this Agreement and the Agreement.
(ix) Such other Loan Documents, and the Administrative Agent shall have received all information and copies of all documents, which the Administrative Agent may reasonably have requested in connection therewith and, where requested by the documents as Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified by appropriate corporate officers of Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);any Bank may reasonably request.
(db) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all The representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as Article IV of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties this Agreement shall have been be true and correct in all material respects on and as of such earlier date with the same effect as if made on and as of such date); provided that any representation .
(c) No Default or warranty that is qualified as to “materiality”Potential Default, “Material Adverse Effect” or similar language shall be true and correct (in existence on such date or after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;initial Loans or Letter of Credit.
(ld) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees All corporate and expenses of the Transactions, (B) the initial Revolving Loans made or legal proceedings and all documents required to be made completed and Letters of Credit issued or executed by the provisions of, and all instruments to be issued executed in connection with the Transactions transactions contemplated by this Agreement and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all any related agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations Required Banks, and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent Banks shall have received a certificate provided by the Company that sets forth all information and copies of all documents, including records of corporate proceedings, required by the Patriot Act including, without limitation, the identity of each Loan Party, the name this Agreement and address of each Loan Party and other information that will allow the any related agreements to be executed or which Administrative Agent or any LenderBank may reasonably have requested in connection therewith, as applicablesuch documents, where appropriate, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the Lenders;be certified by proper corporate or governmental authorities.
(qe) substantially simultaneously with the closing of this AgreementNo legal proceeding shall be pending or threatened against Borrower or any other Company by or before any, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval Tribunal which could not reasonably be expected to have a Material Adverse Effect;.
(sf) the Administrative Agent The consummation of such Loans or issuance of such Letter of Credit shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingnot violate any applicable provision of any Law.
Appears in 1 contract
Sources: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver by Agent of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination by the existing lenders of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, their respective financing arrangements with Borrowers and (ii) Guarantors and the termination and release by ▇▇▇▇▇ Fargo it or them, as lender under the Existing Term Loan Agreement case may be, of any interest in and to any assets and properties of each Loan PartyBorrower and Guarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (Ai) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan PartyBorrower or Guarantor, as debtor debtor; and (Bii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental AuthorityAuthority provided that (A) all financing statements previously filed by Wachovia against Borrowers and Aftermarket Entities shall be assigned to Agent on or before the date hereof and (B) the requirements set forth in this clause (a) shall not apply to any liens, security interests or other encumbrances in effect on the date of this Agreement and permitted under Sections 8.4 and 9.8 hereof;
(cb) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be reasonably satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and certificates of good standing in (i) such document as shall set forth the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles organizational identification number of each Loan Party Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or condition of Borrowers or Aftermarket Entities since the date of Agent's latest field examination and resolutions no change or event shall have occurred which would impair the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the board other Financing Agreements to which it is a party or of directors (Agent or equivalent governing body) of each Loan Party approving and authorizing any Lender to enforce the Loan Documents and Obligations or realize upon the transactions contemplated thereby)Collateral;
(d) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents received such information with respect to Intellectual Propertythe Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, solely without limitation, current perpetual inventory records and/or roll-forwards of Borrowers' Accounts and Inventory through the date of closing and test counts of Borrowers' Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the extent date hereof or such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreementsearlier date as Agent may agree;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters all consents, waivers, acknowledgments and other agreements (or assignments thereof) from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent this Agreement and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificateother Financing Agreements, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, with the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance satisfactory to the Administrative Agent and the LendersCollateral Access Agreements;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, 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, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, under the Fee Letter and all fees and expenses invoiced on or before the Business Day prior to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 1 contract
Sources: Loan and Security Agreement (Proliance International, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of by the Existing Term Loan Agreement, including, but not limited to, a payoff letter, Lenders of their respective financing arrangements with Borrowers and (ii) the termination and release by ▇▇▇▇▇ Fargo it or them, as lender under the Existing Term Loan Agreement case may be, of any interest in and to any assets and properties of each Loan PartyBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (Ai) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan PartyBorrower, as debtor debtor; and (Bii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party Borrower in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(cb) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower as is set forth herein and certificates of good standing in (i) such document as shall set forth the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles organizational identification number of each Loan Party Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since the date of Agent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and resolutions no change or event shall have occurred which would impair the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the board other Financing Agreements to which it is a party or of directors (Agent or equivalent governing body) of each Loan Party approving and authorizing any Lender to enforce the Loan Documents and Obligations or realize upon the transactions contemplated thereby)Collateral;
(d) the Administrative Agent or its counsel shall have received, in form completed a field review of the Records and substance reasonably satisfactory to the Administrative Agent, (i) all consents such other information with respect to Intellectual Propertythe Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, solely without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the extent date hereof or such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreementsearlier date as Agent may agree;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent this Agreement and the Lenders subject to customary limitationsother Financing Agreements, including, without limitation, Collateral Access Agreements;
(kf) the Administrative Agent shall have received a certificate, in form and substance satisfactory Excess Availability (without giving effect to the Administrative Minimum Reserve) as determined by Agent, executed by an authorized officer as of the Company certifying that (i) no Material Adverse Effect date hereof, shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately be not less than $5,000,000 after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distributioninitial transactions hereunder;
(mg) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory theretoto Agent, Deposit Account Control Agreements by and among Agent, each Borrower, as the case may be and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower, as the case may be (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial budgets for Holdings and its Subsidiaries after giving effect to the Transactions, which or Agent shall be quarterly for the fiscal year ending December 31, 2011 and annually thereafter for the term of the Loan Agreement, bank's customer with the results and assumptions set forth therein in form and substance reasonably satisfactory respect to the Administrative such deposit account as Agent (and not inconsistent with information provided to the Lenders prior to the Closing Datemay specify); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(oh) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan Party, the name and address of each Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Actevidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Administrative Agent and the LendersCollateral;
(qi) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower, the jurisdiction of the Senior Notes Documentschief executive office of each Borrower and all jurisdictions in which assets of Borrowers are located, duly executed by the parties thereto, together with all material agreements, instruments which search results shall be in form and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Datesubstance satisfactory to Agent;
(rj) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower (other than Parent) and owned by any Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory funds flow memorandum to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(l) Agent shall have received, in connection form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers with respect to the Transactions setting forth the sources Financing Agreements and uses and accompanied by payment instructions thereforsuch other matters as Agent may request; and
(tm) the Borrower other Financing Agreements and all instruments and documents hereunder and thereunder shall have paid all fees been duly executed and expenses required delivered to be paid hereunderAgent, including without limitation, under the Fee Letter in form and all fees and expenses invoiced on or before the Business Day prior substance satisfactory to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingAgent.
Appears in 1 contract
Sources: Loan and Security Agreement (Sed International Holdings Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of Issuing Lender Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of the Existing Term Loan Agreement, including, but not limited to, a payoff letter, all Indebtedness of Borrowers and Guarantors (iiother than Indebtedness permitted under Section 9.9) and the termination and release by ▇▇▇▇▇ Fargo release, as lender under the Existing Term Loan Agreement case may be, of any interest in and to any assets and properties of each Loan Party, duly authorized, executed Borrower and delivered by it or each of themGuarantor, including, but not limited to, (Ai) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Loan Party, as debtor filed; and (Bii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it Borrower or any of themGuarantor, in form acceptable for recording with the appropriate Governmental Authority;.
(cb) the Loan Parties shall have adopted all All requisite corporate action and proceedings in connection with this Agreement and the other Loan DocumentsFinancing Agreements shall be satisfactory in form and substance to Administrative Agent (including, without limitation any works’ council advice (ondernemingsraadadvies)), and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewith andtherewith, such documents where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents counsel to be certified by appropriate corporate officers of or Governmental Authority (and including a copy of the certificate of incorporation (or formation foreign equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and certificates of good standing in (i) such document as shall set forth the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority), the bylaws or articles organizational identification number of each Loan Party and resolutions Borrower or Guarantor, if one is issued in its jurisdiction of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated therebyincorporation);.
(dc) the Administrative Agent or its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and Lien upon such Intellectual Property, and (ii) all necessary Collateral Access Agreements;
(e) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent No material adverse change in the Collateralbusiness, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and (iii) evidenceoperations, in form and substance reasonably satisfactory to the Administrative Agentprofits, that upon such filings and recordations, the Administrative Agent will have a valid perfected (A) first priority Lien upon all assets or prospects of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(f) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party; and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the extent not previously obtained prior to March 1, 2011;
(h) the Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of certificates representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Loan Party (other than Holdings) and each Subsidiary of each Loan Party which certificated shares (or similar units) are required to be pledged under the Senior Notes Indenture, in each case, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(i) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payee and additional insured;
(j) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, customary opinion letters of special legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders subject to customary limitations;
(k) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;shall have occurred since the date of the most recent financial statements received by Administrative Agent or its latest field examination, if subsequent to the date of such financial statements, and no pending or threatened litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to any Borrower or any Guarantor shall exist that could reasonably be expected to have a Material Adverse Effect.
(ld) Administrative Agent’s completion of its business, legal and environmental due diligence, with results satisfactory to Administrative Agent, including (i) receipt and review of a third party inventory appraisal on which Administrative Agent and the Lenders are permitted to rely, in form and containing assumptions and appraisal methods satisfactory to Administrative Agent by an appraiser acceptable to Administrative Agent, and (ii) field examinations of the business and collateral of Borrowers and Guarantors in accordance with Administrative Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers and Guarantors.
(e) Administrative Agent shall have received an initial Borrowing Base Certificate received, in form and substance satisfactory to Administrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which Administrative Agent may reasonably deem necessary or desirable in order to permit, protect and perfect Collateral Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, inter aliawithout limitation, calculations demonstrating Collateral Access Agreements; provided, however, that Administrative Agent may elect to allow the Company a limited amount of time after the Closing Date to obtain certain Collateral Access Agreements and/or waive the requirement of Collateral Access Agreements with respect to premises for which Administrative Agent has established a Reserve and, at the request of the Company, not require Collateral Access Agreements for any premises where the Company has elected not to include Inventory in the U.S. Borrowing Base.
(f) Excess Availability as determined by Administrative Agent, as of the Closing Date is date hereof, shall be not less than $45,000,000, in each case, 20,000,000 after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions initial transactions hereunder and (C) the payment of all fees and expenses in connection therewith.
(g) Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, Account Control Agreements by and among Administrative Agent, each U.S. Borrower and Guarantor, as the Cash Distribution;case may be, and each bank where such Borrower (or Guarantor) has an account, other than Excluded Deposit Accounts, in each case, duly authorized, executed and delivered by such bank and such Borrower or Guarantor, as the case may be (or Administrative Agent shall be the bank’s customer with respect to such deposit account as Administrative Agent may specify).
(h) Administrative Agent shall have received evidence, in form and substance satisfactory to Administrative Agent, that Collateral Agent has a valid perfected first priority security interest in the Priority Collateral and a valid perfected second priority security interest in all of the CL Priority Collateral other than Real Property, subject only to Permitted Liens.
(i) Administrative Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each U.S. Borrower and Guarantor, the jurisdiction of the chief executive office of each U.S. Borrower and Guarantor and all jurisdictions in which assets of U.S. Borrowers and Guarantors are located and, to the extent available, comparable searches for the Dutch Borrower in the Netherlands (if any) and any applicable jurisdiction (including Washington, D.C.) in the United States, which search results shall be in form and substance satisfactory to Administrative Agent.
(j) Administrative Agent shall have received searches of ownership of intellectual property in the appropriate governmental offices of such patent/trademark/copyright filings as requested by Administrative Agent.
(k) Administrative Agent shall have received evidence that originals of the stock certificates, if any, representing all of the issued and outstanding shares of the Capital Stock owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto have been delivered to the Control Agent.
(l) Administrative Agent shall have received evidence that all instruments and chattel paper in possession of any Borrower or Guarantor, together with such allonges or assignments as may be necessary or appropriate to perfect Collateral Agent’s security interest in the Collateral that are required to be delivered under Section 5.2(b), have been delivered to the Control Agent.
(m) Administrative Agent shall have received evidence of insurance coverage and lender’s loss payee endorsements required hereunder and under the pro forma capital other Financing Agreements, in form and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be substance reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management certificates of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the insurance policies and/or endorsements naming Administrative Agent is satisfactory;as loss payee for casualty insurance, including casualty, liability and business interruption insurance.
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory theretoto Administrative Agent, such opinion letters of counsel to Borrowers and Guarantors (other than ▇▇ ▇▇▇▇▇) with respect to the Financing Agreements and such other matters as Administrative Agent may request and are customarily required for similar financings.
(o) Administrative Agent shall have received all financial information, projections, budgets, business plans, cash flows and such other information as Administrative Agent shall reasonably request, including (i) an opening pro forma projected quarterly consolidated balance sheet sheets, income statements, statements of cash flows and availability of Borrowers and Guarantors for the period through the end of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; 2007 and 2008 fiscal years, (ii) projected pro forma financial budgets for Holdings annual consolidated balance sheets, income statements, statements of cash flows and its Subsidiaries after giving effect availability of Borrowers and Guarantors through the end of the 2012 fiscal year, in each case as to the Transactions, which shall be quarterly for the fiscal year ending December 31, 2011 projections described in clauses (i) and annually thereafter for the term of the Loan Agreement(ii), with the results and assumptions set forth therein in all of such projections in form and substance reasonably satisfactory to Administrative Agent, (iii) any updates or modifications to the projected financial statements of Borrowers and Guarantors previously received by Administrative Agent, in each case in form and substance satisfactory to Administrative Agent and (iv) current agings of receivables, current perpetual inventory records and/or roll-forwards of accounts and not inconsistent inventory through the date of closing, together with information provided supporting documentation, each in form and substance satisfactory to Administrative Agent.
(p) Administrative Agent shall be reasonably satisfied with the corporate and capital structure and management of Borrowers and Guarantors and with all legal, tax, accounting and other matters relating to Borrowers and Guarantors.
(q) No material misstatements in or omissions from the materials previously furnished to Administrative Agent by Borrowers and Guarantors shall have been made. Administrative Agent shall be satisfied that any financial statements delivered to it fairly present the business and financial conditions of Borrowers and Guarantors.
(r) No defaults or events of default on the Closing Date under the Financing Agreements and the CL Financing Agreements or on any other material debt or any Material Contract of any Borrower or any Guarantor shall exist.
(s) All conditions precedent to the Lenders closing and initial extensions of credit under the CL Credit Agreement shall have been, or concurrently with the Closing Date and funding of the Loans shall be, satisfied, waived or subject to a post-closing undertaking (ii) the CL Credit Agreement shall make available to the Company not less than $90,000,000 of term loan and letter of credit facilities, and (iii) Administrative Agent shall be satisfied that the initial extensions of credit under the CL Credit Agreement shall have occurred, or will occur concurrently with the initial extensions of credit under this Agreement. Administrative Agent shall have received a copy, certified by the chief financial officer of the Company as true and complete, of the CL Credit Agreement as originally executed and delivered, together with all exhibits and schedules thereto.
(t) At least five (5) Business Days prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(o) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received a certificate satisfactory thereto for benefit of itself and the Lenders, provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of each Loan PartyBorrowers and Guarantors, the name and address of each Loan Party Borrowers and Guarantors and other information that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party Borrowers and Guarantors in accordance with the Patriot Act.
(u) This Agreement and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Administrative Agent, in form and substance satisfactory to Administrative Agent.
(v) Payment by Borrowers of all fees and expenses owed by them to the Lenders and Administrative Agent, including, without limitation, payment to Administrative Agent and of the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions fees set forth in the Senior Notes Indenture. The Engagement Letter.
(w) Receipt by Administrative Agent shall have received final certified copies of the Senior Notes Documents, duly executed (a) a statement of sources and uses of funds covering all payments reasonably expected to be made by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary Borrowers or Guarantors in connection with the Transactions unless transactions contemplated by the absence Financing Agreements to be consummated on the Closing Date, including an itemized estimate of any such consent or approval could not reasonably all fees, expenses and other closing costs and (b) payment instructions with respect to each wire transfer to be expected to have a Material Adverse Effect;
(s) the made by Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with on behalf of the Transactions Lenders or the Company or Borrowers or Guarantors on the Closing Date setting forth the sources amount of such transfer, the purpose of such transfer, the name and uses number of the account to which such transfer is to be made, the name and accompanied by payment instructions therefor; andABA number of the bank or other financial institution where such account is located and the name and telephone number of an individual that can be contacted to confirm receipt of such transfer.
(tx) Receipt by Administrative Agent of duly executed copies, certified by an officer of the Borrower shall have paid all fees Company as true and expenses required to be paid hereundercomplete, of the Senior Subordinated Note Indenture and the Senior Subordinated Notes, including without limitationall exhibits and schedules thereto, under the Fee Letter in form and all fees and expenses invoiced on or before the Business Day prior substance acceptable to the Closing Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and bindingtheir sole discretion.
Appears in 1 contract