Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date): (a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Dana Inc), Credit and Guaranty Agreement (Dana Inc)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as The obligations of the first date on which the following conditions precedent have been satisfied (Lenders to make Advances and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension Letters of Credit hereunder is were subject to the satisfaction following conditions having been satisfied or waived (the first such date on which each of such the following conditions precedent before were satisfied or concurrently with waived, the “Closing Date”):
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Administrative Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated such day (unless otherwise specified)the Closing Date, in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderAgent:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with by any Lender pursuant to Section 2.16(a)2.16 prior to the Closing Date.
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(ivii) Certified copies of the resolutions of the boards Board of directors Directors of each of ▇▇▇▇ and each Guarantor the Company approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a partythe Notes, and of all documents evidencing other necessary constitutive corporate action and, if any, material and governmental and other third party approvals and consentsapprovals, if any, with respect to this Agreement, Agreement and the other Transactions and each other Loan DocumentNotes.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(viiiii) A certificate of the Secretary or an Assistant Secretary of each Loan Party the Company certifying the names and true signatures of the officers of such Loan Party the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
attaching (x) To the charter and by-laws of the Company certified, to the extent applicable, as of a Notice recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of Borrowing for any Borrowing to be made, and/or one or more Letter the Company’s jurisdiction of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Dateincorporation.
(xiiv) A favorable customary opinion of (A) Pillsbury ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan PartiesCompany.
(v) The Agent shall have received a certificate, substantially in substantially the form of Exhibit D-1 E hereto, from the chief financial officer of the Borrower certifying that the Borrower and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel its Subsidiaries on a consolidated basis after giving effect to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably requestTransactions are solvent.
(xiivi) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(Ax) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) three days prior to the Closing Date, Date all documentation and other information required by bank regulatory authorities under regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that extent reasonably requested in writing of the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect Company at least ten Business Days prior to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.Closing Date and
Appears in 2 contracts
Sources: Receivables Funding and Administration Agreement (Td Synnex Corp), Credit Agreement (Td Synnex Corp)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as the obligations of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender Lenders to make an Advance or of the Issuing Bank to issue a Letter of Credit Loans hereunder on the occasion of the Initial Extension of Credit hereunder is Closing Date are subject to the satisfaction (or waiver by the Required Lenders) of such the following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Agent shall have received on or before the Closing Date the following(i) a counterpart of this Agreement and, except as provided in Section 5.15, each dated such day other Loan Document signed on behalf of each party hereto and thereto (unless otherwise specified), in form and substance reasonably including via any electronic means) or (ii) evidence satisfactory to the Lenders Administrative Agent (unless otherwise specifiedwhich may include a facsimile or other electronic imaging transmission) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreementthat such party has signed such a counterpart.
(iib) The Notes payable to the order Administrative Agent shall have received, on behalf of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents itself and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each Lenders, a favorable written opinion of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ LLP, counsel to for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLPP.A., Michigan counsel for certain Loan Parties, in each case (i) dated the Closing Date, (ii) addressed to the Administrative Agent and the Lenders, and (iii) in form and substance reasonably satisfactory to the Required Lenders, covering such matters customarily covered in opinions of this type as the Required Lenders shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.
(c) The representations and warranties of the Borrower and each other Loan Party contained in Article III or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(d) Immediately prior to and immediately after the Closing Date, no Default or Event of Default shall have occurred and be continuing.
(e) The making of such Loan shall not violate any Requirement of Law applicable to the Loan Parties, and shall not be enjoined, temporarily, preliminarily or permanently.
(f) The Borrower and New Pyxus Topco hereby agree that the release of their signatures to this Agreement shall be deemed to constitute a certification of compliance with the conditions precedent set forth in substantially paragraphs (c), (d) and (e) of this Section 4.01.
(g) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03.
(h) Subject to Section 5.15, the form Administrative Agent shall have received (i) a copy of Exhibit D-2 hereto the certificate or articles of incorporation (or the foreign equivalent), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization (or, to the extent applicable, confirmation that there has been no changes to any such formation document since the closing date of the Term Loan Credit Agreement) and addressing a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (in each case, or the foreign equivalent, if any); (ii) a certificate of the Responsible Officer of each Loan Party (or, with respect to a UK Loan Party, a certificate of a director of such UK Loan Party, or, with respect to any other Foreign Guarantor, an equivalent officer or director of such Foreign Guarantor) dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the constitutional documents, articles of association, memorandum of association, certificate of incorporation and by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below (or, to the extent applicable, confirmation that there has been no changes to any such organizational document since the date of delivery in connection with the Term Loan Credit Agreement), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or its equivalent) of such Loan Party (and, in the case of a UK Loan Party, of resolutions duly passed by its members) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) where required by local law or the relevant constitutional documents, that attached thereto is a true and complete copy of resolutions adopted by the general meeting of shareholders (or its equivalent) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (D) that the certificate or articles of incorporation, constitutional documents, articles of association and memorandum of association of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing (or the foreign equivalent, if any) furnished pursuant to clause (i) above, (E) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and (F) except in the case of any UK Loan Party, as to the absence of any pending proceeding for dissolution or liquidation of such Loan Party or, to the knowledge of such Responsible Officer, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (ii) above; (iv) in the case of a UK Loan Party, a certificate of a director confirming that the entry into the Loan Documents and the transactions contemplated by the Loan Documents would not exceed any guarantee limits under the constitutional documents of such UK Loan Party or under any other agreement or instrument to which such UK Loan Party is a party; (v) in the case of a UK Loan Party, a resolution of the direct shareholders of that UK Loan Party approving the terms of the Loan Documents to which such UK Loan Party is a party and (vi) such other matters documents as the Required Lenders may reasonably request.
(xiii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect[Reserved].
(Aj) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days three Business Days prior to the Closing Date, to the extent requested at least five Business Days prior to the Closing Date, (i) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe USA PATRIOT Act and (ii) if the Borrower qualified as a “legal entity customer” under the Beneficial Ownership Regulation, a customary certification regarding beneficial ownership required by the Patriot ActBeneficial Ownership Regulation in relation to the Borrower.
(xvk) For Except as provided in Section 5.15, the Collateral Agent shall have received evidence that each Material Real PropertyLoan Party shall have taken or caused to be taken any action, executed and delivered or cause to be executed and delivered any other agreement, document and instrument and made or caused to be made any other filing and recording reasonably required by the Collateral Agent and the Lenders. Prior to or substantially simultaneously therewith, the Administrative Agent and the Lenders shall have received the fees in the amounts contemplated to be paid hereunder on the Closing Date or otherwise previously agreed in writing by the Agents or the Lenders, and all expenses (A) a Mortgage including the reasonable fees, disbursements and Mortgage Policy delivered other charges of counsel to the extent payable in accordance with Section 5.01(i), (Bthe terms hereof) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for payable by the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory expenses, to the Administrative Agent and extent invoices have been presented at least one Business Day prior to such date) shall have been paid.
(2l) There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in states in which any court or before any arbitrator or Governmental Authority that affects the Transactions or otherwise impairs the ability of the Loan Parties party to consummate the Transactions and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the applicable Mortgages are organized Agents or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative AgentLenders.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Pyxus International, Inc.), Term Loan Credit Agreement (Pyxus International, Inc.)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as The occurrence of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder Closing Date is subject to the satisfaction of such conditions precedent before the following conditions, each to the satisfaction of the Administrative Agent and each Purchaser in its sole discretion and, as to any agreement, document or concurrently with instrument specified below, each in form and substance reasonably satisfactory to the Closing Date):Administrative Agent’s and each Purchaser in its sole discretion:
(a) The Administrative Agent shall have received on or before the Closing Date each of the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly An executed counterparts counterpart of this Agreement, the CACI Performance Undertaking and the Intercreditor Agreement.
(ii) The Notes payable An executed Account Control Agreement with respect to each Seller Account relating to the order of the Lenders to the extent requested in accordance with Section 2.16(a)Initial Sellers.
(iii) The Security Certified copies of resolutions of CACI and each Initial Seller authorizing this Agreement and the other Purchase Documents and authorizing a person or persons to sign those documents including any subsequent notices and acknowledgements to be executed or delivered pursuant to this Agreement, together with evidence that all the other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Purchase Documents and the required priority thereof has been takenany other documents to be executed or delivered by each Initial Seller pursuant hereto or thereto.
(iv) Certified copies Opinions of the resolutions of the boards of directors counsel to CACI and each Initial Seller, including opinions with respect to due organization and good standing of each of ▇▇▇▇ and each Guarantor approving the such Person, due authorization, execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter Purchase Documents entered into on or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on about the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made hereof by such Loan Party in the Loan Documents to which it is or is to be a party as though made on Person, validity and as enforceability of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents Purchase Documents with respect to be delivered hereunder.
such Person, non-contravention of organizational documents, material agreements and law, no consents, creation of security interest and perfection of security interest (viii) Certificates, in substantially the form of Exhibit I attesting including perfection by control with respect to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactionseach Seller Account), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), Administrative Agent and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders Purchasers may reasonably request.
(xiiv) Since December 31, 2015, there shall not have occurred a Material Adverse EffectAn officer incumbency and specimen signature certificate for CACI and each Initial Seller.
(Avi) All costs, fees Organizational documents of CACI and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated each Initial Seller certified by the Fee Letter applicable governmental authority (as applicable), and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and evidence of good standing (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debtas applicable).
(xivvii) The Lenders shall have received, at least five (5) days prior Opinions of counsel to the Closing Date, all documentation CACI and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Acteach Initial Seller with respect to true sale matters.
(xvviii) For Evidence of the existence of each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory Seller Account relating to the Administrative Agent Initial Sellers.
(ix) A certification that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect each Initial Seller has instructed each Approved Obligor to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party pay all amounts owing on Receivables only to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative AgentSeller Account.
Appears in 2 contracts
Sources: Master Accounts Receivable Purchase Agreement (Caci International Inc /De/), Master Accounts Receivable Purchase Agreement (Caci International Inc /De/)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (The Closing Date and the obligation of the L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit on the occasion of the Initial Extension of Credit hereunder is Extensions shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date;
(ii) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank (if applicable);
(B) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(C) deeds of trust, trust deeds, deeds to secure debt, mortgages, and landlord access waivers, each in form and substance reasonably satisfactory to the Administrative Agent and covering the owned and leased real properties listed on Schedule 4.01(a)(ii)(C) (together with each other mortgage or similar document delivered pursuant to Section 6.11, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(1) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
(2) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable;
(3) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the Closing Date, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent;
(4) Reserved;
(5) estoppel and consent agreements executed by each of the lessors of the leased real properties listed on Schedule 4.01(a)(ii)(C), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent;
(6) without limiting clause (8) below, evidence of the insurance required by the terms of the Mortgages;
(7) an appraisal of each of the owned properties described on Schedule 4.01(a)(ii)(C) complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(8) the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”); and
(9) such appraisals, legal opinions and other customary documents as the Administrative Agent may reasonably request with respect to such Mortgage or Mortgaged Property; and
(D) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent;
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiaries, Subsidiaries (taken as a whole) on a consolidated basis (the Closing Date after giving effect to the Transactions)Transaction, from its the Chief Financial Officer of the Borrower;
(vi) a certificate attesting to the compliance with clauses (c), (d), (h), (j), (k), (l) of this Section 4.01 on the Closing Date from a Responsible Officer of the Borrower;
(vii) a Committed Loan Notice pursuant to Section 2.02;
(viii) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(b) All reasonable fees and out-of-pocket expenses required to be paid and invoiced on or other financial officerbefore the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(ixc) Copies of Prior to or substantially concurrently with (iincluding on the same Business Day as) at least five (5) days prior to the initial Credit Extension on the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recentlySpin-ended Fiscal Years ending more than 90 days prior to the Closing Date; and Off shall have been consummated.
(iid) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries After giving effect to consummation of the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, Transactions on the Closing Date, the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (i) the Loans and L/C Obligations, (ii) the Senior Notes in an aggregate principal amount not to exceed $775,000,000, the proceeds of which shall have been applied to consummate the Spin-Off, and (iii) Indebtedness permitted by Section 7.03(b).
(xie) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, The Administrative Agent and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to shall have received the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably requestAnnual Financial Statements.
(xiif) Since December 31, 2015, there The Administrative Agent and the Lenders shall not have occurred a Material Adverse Effectreceived the Pro Forma Financial Statements.
(Ag) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents on or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, Date all documentation and other information required reasonably requested in writing by bank regulatory authorities under them at least five Business Days prior to the Closing Date in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xvh) For each Material Real PropertyAll approvals, consents, exemptions, authorizations, or other actions by, or notices to, or filings with, any Governmental Authority or any other Person necessary or required for the consummation of the Transaction have been received and all applicable waiting periods in connection with the Transaction have expired without any action having been taken by any Governmental Authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries or that could seek or threaten any of the foregoing, and no Law or regulation shall be applicable that has such effect.
(Ai) The Administrative Agent shall have received a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to the Administrative Agent it that the Flood Insurance Requirements have been satisfiedall insurance required to be maintained pursuant to Section 6.06 is in full force and effect, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, together with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to endorsements naming the Administrative Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06.
(j) The representations and warranties of the Borrower and each other Loan Party contained in Article V hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(k) There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of the Administrative Agent, singly or in the aggregate, materially impairs the Transactions, the financing thereof or any of the other transactions contemplated by the Loan Documents, or that could reasonably be expected to have a Material Adverse Effect.
(l) There has been no change, occurrence or development since September 30, 2011 that could reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Post Holdings, Inc.)
Conditions Precedent to the Closing Date. This Agreement shall become effective on The obligations of each L/C Issuer and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit Extensions on the occasion of the Initial Extension of Credit hereunder is Closing Date (if any) shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by an Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date;
(ii) executed copies of (x) this Agreement, and (y) each Security Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Security Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Officer thereof authorized to act as an Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) Milbank LLP, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent;
(v) A copy a certificate attesting to the Solvency of the charter or other constitutive document of each Loan Party Borrower and each amendment thereto, certified its Subsidiaries (taken as of a date reasonably acceptable whole) on the Closing Date after giving effect to the Administrative Agent) by Transactions, from the Secretary of State Chief Financial Officer of the jurisdiction of its incorporation or organizationBorrower, substantially in the form attached hereto as the case may be, thereof as being a true and correct copy thereof.Exhibit J;
(vi) A a certificate attesting to the compliance with clauses (d), (e), (f) and (h) of each Loan Party signed this Section 4.01 on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as from an Officer of the Closing Date), certifying as to Borrower; and
(Avii) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of if any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit Loans are to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceedsDate, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015Committed Loan Notice pursuant to Section 2.02.
(viib) A certificate All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to Agency Fee Letter shall have been paid or shall have been authorized to be deducted from the proceeds of the Secretary initial funding under the Facilities, so long as any such fees or an Assistant Secretary of each Loan Party certifying expenses not expressly set forth in the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) Agency Fee Letter have been have been invoiced not less than three business days prior to the Closing Date, audited financial statements of ▇▇▇▇ .
(c) The Administrative Agent and its Subsidiaries for each of the Lenders shall have received at least three most recently-ended Fiscal Years ending more than 90 days Business Days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, writing at least five (5) days seven Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAct and the Beneficial Ownership Regulation.
(xvd) For The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Real PropertyAdverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(e) There has been no change, occurrence or development since September 30, 2020 that could reasonably be expected to have a Material Adverse Effect.
(f) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing.
(g) [Reserved].
(h) Prior to or substantially concurrently with the Closing Date, (Ai) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements 2026 Senior Secured Notes shall have been satisfied, issued and (Cii) favorable opinions of local counsel for the Loan Parties (1) Existing Credit Agreement shall have been paid off in states in which the Material Real Property is located, with respect full and terminated and all liens thereunder shall have been released pursuant to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance a customary payoff letter reasonably satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Turning Point Brands, Inc.), Credit Agreement (Turning Point Brands, Inc.)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation agreement of each Lender to make an Advance or of the Issuing Bank Initial Term Loans requested to issue a Letter of Credit be made on the occasion of the Initial Extension of Credit hereunder Closing Date is subject to the satisfaction of such conditions precedent before of, or waiver in accordance with Section 10.01, prior to or substantially concurrently with the making of such Initial Term Loans on the Closing DateDate of the following conditions precedent (unless characterized as post-closing obligations pursuant to Section 6.17 and set forth on Schedule 6.17):
(a) The Administrative Agent’s receipt of executed counterparts of (i) this Agreement from the Borrower and (ii) the Guaranty from each Guarantor identified on Schedule 1.01(d), each of which shall be originals or telecopies or .pdf format files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to each Lender. If requested by a Lender, the Administrative Agent shall have received received, for the account of such Lender, an executed copy of the appropriate Note for such Lender, in each case in the amount, maturity and as otherwise provided herein; provided that the original of any such executed Note shall be delivered by the Borrower promptly after the Closing Date.
(b) Subject to Section 6.17, the Administrative Agent’s receipt of each of the agreements, documents, instruments and other items set forth on the closing checklist attached hereto as Schedule 4.01 (the “Closing Checklist”), each of which shall be originals or telecopies or .pdf format files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or any earlier date specified in the Closing Checklist or, in the case of certificates of governmental officials and any resolutions of any board of directors or similar governing body of any Loan Party, a recent date before the Closing Date the following, Date) and each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this AgreementAdministrative Agent.
(iic) The Notes payable All reasonable and documented out-of-pocket costs, fees and expenses required to be paid to the order of Agents, the Arrangers, the L/C Issuers and the Lenders (including, without limitation, the reasonable and documented out-of-pocket costs, fees and expenses of any counsel, financial advisor or consultant to the extent requested in accordance with Section 2.16(a).
(iii) The Security AgreementAgents, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents L/C Issuers and the required priority thereof has been taken.
(iv) Certified copies Lenders, but subject in all respects to the limitations on fees and expenses of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental counsel and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to advisors set forth in Section 3.01(a)(iv10.04(a)) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation on or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of before the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) extent invoiced at least five one (51) days calendar day prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each shall have been paid, including, without limitation, fees payable on the Closing Date pursuant to Section 2.09; provided that such amounts may be funded with the proceeds of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing Initial Term Loans requested to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, made on the Closing Date.
(xid) A favorable opinion of At least two (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (52) days prior to the Closing DateDate (or such shorter period agreed to by any applicable requesting Lender), the Lenders shall have received all documentation and other information with respect to the Borrower and the Guarantors party to the Guaranty as of the Closing Date, to the extent required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitationthe Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Patriot “PATRIOT Act”) to the extent requested at least seven (7) Business Days prior to the Closing Date.
(xve) For On or prior to the Closing Date, the Debtor Loan Parties shall have commenced the Borrower’s Case and the other Cases, and the Borrower and each Material Real PropertyGuarantor identified on Schedule 1.01(d) to be an initial Debtor shall be a debtor and a debtor-in-possession. All of the “first day orders” entered by the Bankruptcy Court on or about the time of commencement of the Cases (and, (Aif any such orders shall not have been entered by the Bankruptcy Court, the form of such orders submitted to the Bankruptcy Court for approval) a Mortgage and Mortgage Policy delivered all payments approved by the Bankruptcy Court in accordance with Section 5.01(i)any such orders, (B) if such Material Real Property is a Special Flood Hazard Property, evidence including the Interim Financing Order or otherwise shall be in form and substance reasonably satisfactory to the Administrative Agent that Required Consenting Parties and the Flood Insurance Requirements have been satisfied, and Required Lenders.
(Cf) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the The Administrative Agent and (2) in states in which the Loan Parties party to Required Lenders shall have received a signed copy of an order of the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such MortgagesBankruptcy Court, in form and substance satisfactory to the Required Consenting Parties and the Required Lenders (it being understood and agreed that an order in the form of Exhibit I shall, if entered by the Bankruptcy Court, be deemed satisfactory to the Required Consenting Parties and the Required Lenders) and such order shall have been entered not later than three (3) Business Days following the Petition Date (or such later date as the Required Lenders may agree in writing) (as the same may be amended, supplemented or modified from time to time after entry thereof in accordance with the terms thereof, the “Interim Financing Order”), which Interim Financing Order shall, among other things, (i) authorize the Initial Term Loans in the amounts and on the terms set forth herein, (ii) authorize the L/C Facility on the terms set forth herein (other than the Final Order Replacement Letters of Credit, which shall be authorized by the Final Financing Order), (iii) set forth certain intercreditor arrangements (the “Post-Petition Intercreditor Arrangements”) with respect to the Obligations and the Prepetition Obligations (unless waived by the Required Consenting Parties and the Required Lenders to be determined at the final hearing), and (iv) grant the DIP Superpriority Claims and other Liens on the assets of the Debtor Loan Parties referred to herein and in the other Loan Documents and which Interim Financing Order shall be in full force and effect and shall not have been amended, modified, stayed, vacated, terminated or reversed; provided that (x) if such Interim Financing Order is the subject of a pending appeal in any respect, none of such Interim Financing Order, the initial extensions of credit, or the performance by the Borrower of any of the Obligations shall be the subject of a presently effective stay pending appeal, (y) the Borrower, the Administrative Agent and the Lenders shall be entitled to rely in good faith upon such Interim Financing Order, notwithstanding objection thereto or appeal therefrom by any interested party and (z) the Borrower, the Administrative Agent and the Lenders shall be permitted and required to perform their respective obligations in compliance with this Agreement notwithstanding any such objection or appeal unless the relevant order has been stayed by a court of competent jurisdiction. The Debtors shall be in compliance in all respects with the Interim Financing Order.
(g) No trustee or responsible officer or examiner (other than a fee examiner) having expanded powers (beyond those set forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code) under section 1104 of the Bankruptcy Code shall have been appointed or elected, with respect to any of the Loan Parties, any of their Subsidiaries or their respective properties.
(h) The Arrangers, the Administrative Agent and the Lenders shall have received a cash flow forecast satisfactory to the Required Consenting Parties and the Required Lenders depicting on a weekly basis receipts and disbursements, cash receipts, Cash balance and loan balance for the 13-week period ending after the Petition Date (including the week in which the Petition Date occurred) dated as of the Petition Date and delivered to the Arrangers and Tranche B Advisors as the “Final Budget” as of such date (the “Initial Budget”) which shall be in form and substance satisfactory to the Required Consenting Parties and the Required Lenders, together with a good faith estimate of all borrowings of Loans to be made within the first week following the Closing Date.
(i) There shall exist no unstayed action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Borrower) threatened in any court or before any arbitrator or governmental instrumentality against any Loan Party or Subsidiary, except for (i) the Cases or the consequences that would normally result from the commencement, continuation and prosecution of the Cases, (ii) Disclosed Matters, (iii) any objections or pleadings that may have been filed in the Cases relating to authorization to enter into the Loan Documents and incur the Obligations and (iv) as would not reasonably be expected to have a Material Adverse Effect.
(j) Subject to Section 6.17, the Security Documents and the Interim Financing Order, upon entry thereof, shall be effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, legal, valid, enforceable, perfected and unavoidable Liens on and security interests in the Collateral as set forth in Section 2.17; provided that, with respect to any Liens granted by any Non-Debtor Loan Party, such Liens shall only be required to be perfected on the Closing Date to the extent such Liens can be perfected by the filing of uniform commercial code financing statements in the central filing office of such Non-Debtor Loan Party’s jurisdiction of organization (it being understood and agreed that, after the Closing Date, such Non-Debtor Loan Party shall be required to take any and all actions additionally required by Section 6.17(a)). The initial Loan Parties shall have delivered uniform commercial code financing statements, in suitable form for filing, and shall have made arrangements for the filing thereof that are reasonably acceptable to the Administrative Agent. For the avoidance of doubt, the Interim Financing Order shall deem any and all Liens granted by the Debtor Loan Parties to be perfected.
(k) The Borrower shall have delivered to the Administrative Agent and Tranche B Advisors protocols and procedures regarding intercompany claims and Cash transfers in form and substance reasonably satisfactory to the Required Consenting Parties.
(l) The Borrower DIP Facilities Blocked Account shall have been established and shall be subject to a blocked account control agreement in form and substance reasonably satisfactory to the Administrative Agent.
(m) Since the Petition Date, there has been no event or circumstance that has had or would reasonably be expected to have a Material Adverse Effect.
(n) On the Closing Date, all orders of the Bankruptcy Court (if any) providing for payment of Prepetition First Lien Obligations or Prepetition Second Lien Obligations of the Borrower or affecting in any way the Obligations or the Collateral submitted for entry in the Cases shall be in form and substance satisfactory to the Required Consenting Parties and the Required Lenders and, as entered, shall not deviate from the form thereof approved by the Required Consenting Parties and the Required Lenders in any respect which is adverse to the interests of the Lenders, the Prepetition First Lien Lenders or the Prepetition Second Lien Secured Parties, as applicable (in their respective capacities as such).
(o) The Administrative Agent and the Lenders shall have received all documents and instruments (in form and substance reasonably satisfactory to the Administrative Agent, the Required Consenting Parties and the Required Lenders) that the Required Consenting Parties or the Required Lenders have then reasonably requested, in addition to those described above in this Section 4.01.
(p) [Reserved].
(q) The Administrative Agent shall have received evidence satisfactory to the Tranche A Required Consenting Parties and the Required Tranche A Lenders that the requisite holders of Prepetition Second Lien Lenders and Prepetition Second Lien Noteholders have agreed to and approved the Post-Petition Intercreditor Arrangements and have instructed the Second Lien Collateral Trustee to enter into such amendments or modifications to any of the Prepetition Second Lien Documents (including any intercreditor agreement related thereto) as may be reasonably requested by the Tranche A Required Consenting Parties. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender and L/C Issuer that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender or L/C Issuer unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received a written notice from such Lender or L/C Issuer, as the case may be, prior to the proposed Closing Date specifying its objection thereto. In the event that any Required Consenting Party does not intend to provide its ratable share of Initial Term Loans to be funded on the Closing Date due to non-compliance with the conditions specified in this Section 4.01, it shall use commercially reasonable efforts to notify the Administrative Agent, which in turn shall promptly notify the Lenders and the Borrower of such circumstance.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Sunedison, Inc.)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the The obligation of each Lender to make an Advance or Credit Extensions hereunder shall become effective on the date (such date, the “Closing Date”) on which each of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such following conditions precedent before or concurrently with the Closing Date):is satisfied:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day of which shall be originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date prior to the Closing Date) and each in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) Administrative Agent and (except for each of the Notes) in sufficient copies for each LenderLenders:
(i) Duly executed counterparts of this Agreement., sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) The Notes payable to executed by the order Borrower in favor of the Lenders to the extent requested in accordance with Section 2.16(a).each Lender requesting a Note;
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion opinions of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC, LLP, special Tennessee counsel to the Loan PartiesBorrower, which opinion shall cover the matters contained in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters)F-1, and (B) ▇▇▇▇▇ ▇. ▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇Vice President, LLP, Michigan counsel Corporate Secretary and Assistant General Counsel to the Loan PartiesBorrower, which opinion shall cover the matters contained in Exhibit F-2;
(iv) a certificate, signed by an Authorized Officer of the Borrower, certifying that (A) all representations and warranties of the Borrower contained in this Agreement and the other Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to the transactions contemplated hereby (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in substantially which case such representation or warranty shall be true and correct as of such date), (B) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the form consummation of Exhibit D-2 hereto the transactions contemplated hereby, (C) no change, occurrence or development shall have occurred or become known to the Borrower since December 31, 2006 that could reasonably be expected to have a Material Adverse Effect, and addressing (D) all conditions precedent to the Closing Date set forth in this Section 3.1 have been satisfied or waived as required hereunder;
(v) a certificate of the secretary or an assistant secretary of the Borrower certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower, certified as of a recent date by the Secretary of State of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws of the Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of the Borrower, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents, and as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of such other matters Credit Documents, and attaching all such copies of the documents described above;
(vi) the Financial Condition Certificate signed by an Authorized Officer of the Borrower containing the copies of the financial statements referred to in Section 4.12 and confirming that, as of the Lenders may reasonably requestClosing Date, after giving effect to the consummation of the transactions contemplated hereby:
(A) each of the Borrower and its Subsidiaries is solvent; and
(B) the Financial Strength Rating for each Main Domestic Insurance Subsidiary is A- or better; and
(vii) a certificate as of a recent date of the good standing of the Borrower under the laws of its jurisdiction of organization, from the Secretary of State of such jurisdiction.
(xiib) Since December 31, 2015, there All material governmental authorizations and third-party consents and approvals necessary in connection with the consummation of any of the transactions contemplated hereby shall have been obtained and shall remain in effect and shall not impose any restriction or condition materially adverse to the Administrative Agent or the Lenders; all applicable waiting periods shall have occurred expired without any action being taken or threatened by any Governmental Authority; and no law or regulation shall be applicable, or event shall have occurred, that seeks to enjoin, restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the consummation of any of the transactions contemplated hereby.
(c) There shall be no action, suit, proceeding or investigation (whether previously existing, newly instituted or threatened) before, and no order, injunction or decree shall have been entered by, any court, arbitrator or other Governmental Authority, in each case seeking to enjoin, restrain, restrict, set aside or prohibit, to impose material conditions upon, or to obtain substantial damages in respect of, the consummation of any of the transactions contemplated hereby or that has, or could reasonably be expected to have, a Material Adverse Effect.
(Ad) All costsThe Administrative Agent shall have received copies of the financial statements referred to in Section 4.12.
(e) Since December 31, fees 2006, both immediately before and expenses after giving effect to the consummation of the transactions contemplated hereby, there shall not have occurred (includingi) a Material Adverse Effect or (ii) any event, without limitationcondition or state of facts that could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent shall be satisfied that, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) as of the last day of the fiscal quarter most recently ended prior to the Closing Date) Date in which financial statements are available, the Borrower is in compliance with the financial covenants set forth in Article VI and shall have received a certificate of an Authorized Officer of the Borrower as to the foregoing, together with a completed Covenant Compliance Worksheet and other compensation contemplated by supporting documentation.
(g) The Borrower shall have paid (i) to the Arrangers and the Administrative Agent, the fees required under the Fee Letter and payable Letters to be paid to it on the Agents or Closing Date, in the Lender Parties shall have been paid in full in cash to the extent amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Fee Letters, and (Biii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent, the Issuing Lender and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement, the other Credit Documents and the transactions contemplated hereby.
(h) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the Loans to be made hereunder.
(i) Each of the Administrative Agent and each Lender shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby consistent with those customarily found in similar financings. Without limiting the generality of the provisions of Section 9.4, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of notice from such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days Lender prior to the proposed Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActDate specifying its objection thereto.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Unum Group)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly D▇▇▇ executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇D▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇D▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇D▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ Dana and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇D▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) P▇▇▇, W▇▇▇▇, WeissR▇▇▇▇▇▇, Rifkind, ▇W▇▇▇▇▇▇ & ▇G▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇S▇▇▇▇▇▇▇, Loop & ▇K▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇D▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇D▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date (the "Closing Date") on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit Advances hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent and FFH shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders FFH (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this AgreementAgreement from each Credit Party.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a)2.09.
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors or shareholder(s) of each of ▇▇▇▇ the Borrowers and each Primary Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Reorganization Plan, this Agreement, the other Transactions Agreement and each other Loan Document.
(viv) A copy of the charter or other constitutive document of each Loan Party Borrower and each Primary Guarantor and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative AgentFFH) by the Secretary of State of the jurisdiction (or other Governmental Authority, as applicable) of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(viv) A certificate of each Loan Party Borrower and each Primary Guarantor signed on behalf of such Loan Credit Party by a Responsible OfficerOfficer or its secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Credit Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Credit Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Credit Party; and (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) Advance or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(viivi) A certificate of the Secretary or an Assistant Secretary or other appropriate officer or manager of each Loan Party Borrower and each Primary Guarantor certifying the names and true signatures of the officers of such Loan Credit Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viiivii) CertificatesThe Administrative Agent and FFH shall have received (A) a weekly cash bankruptcy budget for the 13-week period from the commencement of the Cases, prepared by the Credit Parties and in substantially the form of Exhibit I attesting and substance acceptable to the Solvency FFH in its sole discretion (the "Interim DIP Budget") and (B) draft 2008 audited consolidated financial statements of ▇▇▇▇ Parent and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ixviii) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a A Notice of Borrowing for any the Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, made on the Closing Date.
(xib) A favorable opinion The Administrative Agent and the Lenders shall have received (i) satisfactory evidence of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, entry of an order of the U.S. Bankruptcy Court substantially in substantially the form of Exhibit D-1 heretoC (the "Interim Order") approving, among other things, the Loan Documents, granting the Superpriority Claim status and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law mattersLiens described in Section 4.01(m), providing for an intercreditor arrangement with the secured parties under the Existing Facilities and including granting of the adequate protection described therein and (Bii) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to satisfactory evidence of the Loan Parties, issuance of the Initial CCAA Order substantially in substantially the form of Exhibit D-2 hereto D.
(c) The Credit Parties shall be in compliance with the orders described in clause (b) above, which shall be in full force and addressing such other matters as effect and shall not have been vacated, reversed, modified, amended or stayed without the prior written consent of the Required Lenders may reasonably request(which consent shall not be unreasonably withheld).
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(Ad) All costsof the "first day orders" (including the Interim Order and the Initial CCAA Order) entered by the Bankruptcy Courts at the time of the commencement of the Cases, fees related orders, and expenses (including, without limitation, legal fees motions and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior other documents to be filed with and submitted to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties U.S. Bankruptcy Court in connection with this Agreement shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence be reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to FFH.
(e) No examiner with increased powers to operate the Administrative Agent Credit Parties' material businesses or trustee, receiver, interim receiver or receiver and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, manager shall have been appointed with respect to any or all of the valid existence, corporate power and authority of such Loan Credit Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agentor their respective properties.
Appears in 1 contract
Sources: Senior Secured Superpriority Debtor in Possession Credit Agreement (AbitibiBowater Inc.)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as is subject to satisfaction of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Agent Agent’s receipt of the following, each of which shall have received be (x) properly executed by a duly authorized officer of the signing Loan Party, if and as applicable, (y) dated on or before the Closing Date (or, in the followingcase of certificates of governmental officials, each dated such day a recent date before the Closing Date) and (unless otherwise specified), z) in form and substance reasonably satisfactory acceptable to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderRequired Lenders, including:
(i) Duly executed counterparts of this Agreement., executed and delivered by the Administrative Agent, the Borrower, each Guarantor and each Person that is a Lender as of the Closing Date;
(ii) The Notes payable to the order of Agency Fee Letter, executed and delivered by the Lenders to Agents and the extent requested in accordance with Section 2.16(a).Borrower;
(iii) The Security AgreementNotes, together with evidence that all other actions that executed and delivered by the Collateral Agent may reasonably deem necessary or desirable Borrower in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.favor of each Lender requesting any Note;
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness Organizational Documents of each Loan Party, certified, to the charter (or other extent applicable, by the applicable formation document) of such Loan Party Governmental Authority, and the absence of any changes thereto; (B) amendments to the accuracy Organizational Documents of such Loan Party since the date certified by such Governmental Authority, including a true and completeness correct copy of the bylaws (bylaws, limited liability company agreement, or other applicable organizational document) partnership agreement of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ivclause (B) below were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.,
Appears in 1 contract
Sources: Credit and Guaranty Agreement
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement and the Closing Date Intercreditor Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security AgreementCollateral Documents, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors or the sole members, as applicable, of each of ▇▇▇▇ the Borrower and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event Default or Event of Default occurring and continuing, or resulting from any of the Borrowings entry into this Agreement or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Defaulttransactions contemplated hereby; and (F) the absence of a Material Adverse Effect since December 31, 20152019.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016[Reserved].
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xiixi) Since December 31, 20152019, there shall not have occurred a Material Adverse Effect.
(Axii) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ the Borrower has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter Letters and payable to the Agents or the Lender Parties Lenders shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debtpayable.
(xivxiii) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations and Beneficial Ownership Regulation, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: 364 Day Bridge Facility and Guaranty Agreement (Dana Inc)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on is subject to and as conditional upon the prior fulfilment of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent the Administrative Agent and the Lenders:
13.1.1 On or prior to 4:00 p.m. (Toronto time) on the Banking Day before or concurrently with the Closing Date):
(a) The , the Administrative Agent shall have received on or before from the Closing Date Borrower, in sufficient quantities to provide one copy to each Lender and to the Administrative Agent, the following, each dated such day (unless otherwise specified), as of a date satisfactory to the Lenders and in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderLenders:
(i) Duly 13.1.1.1 this Agreement duly executed counterparts of this Agreement.
(ii) The Notes payable to by the order of Obligors, the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.Administrative Agent;
(iv) Certified 13.1.1.2 the Intercreditor Agreement duly executed by the Obligors, the Lenders, the Hedge Providers and the Administrative Agent;
13.1.1.3 certified copies of the resolutions of the boards of directors charter and by-laws of each Obligor and of ▇▇▇▇ all documents and each Guarantor resolutions evidencing necessary corporate action on their part approving and authorizing the execution execution, delivery and delivery performance of this Agreement and each the other Loan Document Documents to which it is, or is intended to be a party, party and of all documents evidencing any other necessary constitutive corporate action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions Loan Documents and each other Loan Document.
(v) A copy of the charter instruments, certificates or other constitutive document documents contemplated herein, and approving and authorizing the manner in which and by whom the foregoing documents are to be executed and delivered;
13.1.1.4 a certificate of status, compliance, good standing or like certificate with respect to each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) Obligor issued by the Secretary of State appropriate government officials of the jurisdiction of its incorporation or organizationamalgamation, as the case may beapplicable, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made jurisdiction in which certificate shall be true they carry on and as business if applicable;
13.1.1.5 certified copies of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceedsRequired Approvals, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute ;
13.1.1.6 a Default; and (F) the absence certificate of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary Responsible Officer of each Loan Party Obligor certifying the names and true signatures signature of the their officers of such Loan Party authorized to sign this Agreement and Agreement, the other Loan Documents and any other documents or certificates to be delivered hereunder.pursuant to this Agreement;
(viii) Certificates, 13.1.1.7 certificates of insurance in substantially accordance with the form requirements of Exhibit I attesting Section 14.4;
13.1.1.8 copies of any existing Phase 1 environmental assessment and environmental audits in respect of all Material Real Property owned or leased by the Obligors which have not previously been delivered to the Solvency of ▇▇▇▇ Administrative Agent;
13.1.1.9 the Guarantees and its Restricted SubsidiariesSecurity Documents duly authorized, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ executed and its Subsidiaries for delivered by each of the three most recently-ended Fiscal Years ending more than 90 days prior Obligors parties hereto to the Closing Date; extent required by the Collateral and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect Guarantee Requirement to the Transactions, in each case prepared in extent such Security Documents have not previously been delivered to the Administrative Agent;
13.1.1.10 a manner consistent with certificate of a Responsible Officer of the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issuedBorrower certifying that, on the Closing Date., the Borrower is in compliance with the financial ratios set forth in Section 14.2.1;
13.1.1.11 certified copy of the Term Loan Agreement including all amendments thereto;
13.1.1.12 the results of Lien searches of all filings, registrations or recordings of or with respect to all the Assets (xiother than real property) A favorable of the Obligors (i) for Canadian Obligors, in each jurisdiction in which their respective Assets are located or they have an office (which Assets in such jurisdiction have a value exceeding $1,000,000), and (ii) for US Obligors, in their jurisdiction of organization, in each case, together with such other documents that the Lenders shall reasonably require evidencing, to the entire satisfaction of the Lenders, that all such Assets are free and clear of all Liens, other than Permitted Liens;
13.1.1.13 a favourable opinion of (A) Stikeman Elliott LLP, Canadian counsel to the Borrower, and S▇▇▇▇, Weiss, Rifkind, ▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇▇, ▇ LLP, United States counsel to the Loan PartiesBorrower, in substantially form and substance acceptable to the form of Exhibit D-1 heretoAdministrative Agent and the Lenders, and addressing such other matters as addressed to the Administrative Agent, the Lenders may reasonably request (including as to Delaware corporate law matters)and Lenders’ Counsel; and
13.1.1.14 a favourable report of Lenders’ Counsel, and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel addressed to the Loan PartiesAdministrative Agent and to each Lender;
13.1.2 each of the Security Documents or financing statements, notices or applications in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31respect thereof, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid duly registered, filed and recorded against all Material Real Property of each Obligor, if any, and in full all other places and in cash all jurisdictions which the Lenders shall require, to the extent due entire satisfaction of the Lenders and payable Lenders’ Counsel and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it the Lenders and Lenders’ Counsel of such registrations, recordings or filings and that the repayment Security Interests thereunder constitute valid, effective and perfected first priority Security Interests, subject only to Permitted Liens, except with respect to the delivery of all Debt under the Existing Credit Agreement, at which time all commitments, security interests Security Documents and guarantees related confirmation of title insurance in respect of Material Real Property for those Obligors that are becoming Obligors as of the Closing Date, in which case such Debt and documents shall be delivered, unless otherwise agreed by the related documents thereunder will be terminatedAdministrative Agent, returned and discharged within 180 days following Closing;
13.1.3 receipt by the Administrative Agent of all estoppel letters reasonably required by the Administrative Agent in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently accordance with the Initial Extension requirements of Credit hereunderSchedule 15.1, to the extent not previously delivered to the Administrative Agent copies Agent;
13.1.4 receipt by each Lender of all information and documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable such Lender to meet its obligations with respect to “know your customer” and anti-money laundering rules and regulationsrules under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and its regulations (or similar Applicable Law);
13.1.5 no event has occurred which constitutes a Material Adverse Effect since June 30, including without limitation2021;
13.1.6 the commitment fees, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage letter of credit fronting fees and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions Letter of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, Credit Commissions payable with respect to the enforceability Facility B Credit under the Original Credit Agreement for the period from and perfection including July 1, 2021 to the Closing Date and any other amounts payable with respect to the Facility B Credit shall have been paid or be paid out of the applicable Mortgages proceeds of the initial Advance under Facility A Credit;
13.1.7 all amounts due and any related fixture filings in form payable on or before the initial Advance by the Borrower pursuant to this Agreement and substance satisfactory to the other Loan Documents, including reasonable out of pocket costs, work fees and reasonable legal fees of the Administrative Agent and the Lenders (2) in states in which including reasonable legal fees of Lenders’ Counsel), shall have been paid or be paid out of the Loan Parties party to proceeds of the applicable Mortgages are organized or formed, with respect to initial Advance under Facility A Credit; and
13.1.8 receipt by each Lender of a five-year consolidated financial forecast of the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative AgentCanadian Borrower.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective The obligation of Lender to make the Loan hereunder on and as the Closing Date is subject to satisfaction (or waiver by Agent at the direction of the first date on which Required Lenders) of the following conditions precedent have been precedent, which shall be deemed satisfied (and or waived, as applicable, upon the obligation of each Lender to make an Advance or funding of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):Loan by Lender:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed Executed original counterparts of this Agreement.each Collateral Document in substantially the form agreed upon as of the Effective Date (subject to reasonable review and comment by the security agent with respect to the Collateral Documents relating to the DR Property), each properly executed by a Responsible Officer of each applicable signatory thereto, and each applicable Borrower Party’s release of its signature to each of Loan Documents executed by the applicable Borrower Party;
(ii) The Notes payable to the order A copy of the Lenders to executed organizational documents of Borrower, Security Guarantor, Pledgee, and any constituent members of Borrower, Security Guarantor, and Pledgee, in each case in the extent requested in accordance with Section 2.16(a).form previously approved by Agent;
(iii) The Security Agreement, together with evidence Evidence satisfactory to Agent that all other actions that actions, recordings and filings of or with respect to the Collateral Security Instruments and the Debentures as well as any other security documents as Agent may reasonably deem necessary or desirable request in order to perfect and protect the liens and security interests Liens created under the Collateral Documents and the required priority thereof has thereby shall have been taken., or otherwise provided for in a manner reasonably satisfactory to the Agent (including evidence that there have been no intervening Liens since the date of the last title search, subject to Permitted Encumbrances; provided, that, Borrower or Security Guarantor shall have the right to pay off or otherwise remove any such intervening Liens, if any) to the extent required by the applicable document; provided, that the foregoing shall not require a confirmation or return of the filed and/or recorded document for purposes of funding the Allocated Loan Amount for the DR Property;
(iv) Certified copies Executed certificates and resolutions or other corporate or limited liability company action, incumbency certificates and/or other certificates of the resolutions of the boards of directors Responsible Officers of each Borrower Party, evidencing the identity, authority and capacity of ▇▇▇▇ and each Guarantor approving the execution and delivery of Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it such Borrower Party is a party or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided form previously approved by ▇▇▇▇ dated May 5, 2016.Agent;
(xv) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit customary opinions from (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A1) ▇▇▇▇▇ Lovells US LLP, WeissNew York counsel to the Borrower Parties, Rifkind(2) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel to the Borrower Parties, (3) NautaDutilh New York P.C., Dutch counsel to the Borrower Parties, (4) ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, Jamaican counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, Jamaica Borrower and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters)Jamaica Security Guarantor, and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation agreement of each Lender to make an Advance or of the Issuing Bank Initial Term Loans requested to issue a Letter of Credit be made on the occasion of the Initial Extension of Credit hereunder Closing Date is subject to the satisfaction of such conditions precedent before of, or waiver in accordance with Section 10.01, prior to or substantially concurrently with the making of such Initial Term Loans on the Closing DateDate of the following conditions precedent (unless characterized as post-closing obligations pursuant to Section 6.17 and set forth on Schedule 6.17):
(a) The Administrative Agent’s receipt of executed counterparts of (i) this Agreement from the Borrower and (ii) the Guaranty from each Guarantor identified on Schedule 1.01(d), each of which shall be originals or telecopies or .pdf format files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to each Lender. If requested by a Lender, the Administrative Agent shall have received received, for the account of such Lender, an executed copy of the appropriate Note for such Lender, in each case in the amount, maturity and as otherwise provided herein; provided that the original of any such executed Note shall be delivered by the Borrower promptly after the Closing Date.
(b) Subject to Section 6.17, the Administrative Agent’s receipt of each of the agreements, documents, instruments and other items set forth on the closing checklist attached hereto as Schedule 4.01 (the “Closing Checklist”), each of which shall be originals or telecopies or .pdf format files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or any earlier date specified in the Closing Checklist or, in the case of certificates of governmental officials and any resolutions of any board of directors or similar governing body of any Loan Party, a recent date before the Closing Date the following, Date) and each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Sunedison, Inc.)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation obligations of each L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit Extensions on the occasion of the Initial Extension of Credit hereunder is Closing Date shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified), in form and substance reasonably satisfactory to each properly executed by a Responsible Officer of the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lendersigning Loan Party:
(i) Duly a Note executed counterparts by the Borrower in favor of this Agreement.each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date;
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(aeach Collateral Document set forth on Schedule 4.01(a)(ii)., executed by each Loan Party thereto;
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies such certificates of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by Agent may reasonably require evidencing the Secretary of State of the jurisdiction of its incorporation or organizationidentity, as the case may be, thereof as being a true authority and correct copy thereof.
(vi) A certificate capacity of each Loan Party signed on behalf of such Loan Party by Responsible Officer thereof authorized to act as a Responsible Officer, dated the Closing Date (the statements made Officer in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign connection with this Agreement and the other documents Loan Documents to be delivered hereunder.which such Loan Party is a party;
(viiiiv) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), an opinion from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), Loop & ▇▇▇▇▇▇▇▇in each case as reasonably requested by the Administrative Agent, LLPin the case of each of clauses (A) and (B), Michigan counsel in form and substance reasonably satisfactory to the Loan PartiesAdministrative Agent;
(v) a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions, from the Chief Financial Officer of the Borrower, substantially in substantially the form attached hereto as Exhibit J;
(vi) a certificate attesting to the compliance with clauses (c), (g) and (h) of Exhibit D-2 hereto and addressing such other matters as this Section 4.01 on the Lenders may reasonably requestClosing Date from a Responsible Officer of the Borrower; and
(vii) a Committed Loan Notice pursuant to Section 2.02.
(xiib) Since December 31, 2015, there All actions necessary to establish that the Administrative Agent will have a perfected first priority security interest (subject to Permitted Liens) in the Collateral under the Loan Documents shall have been taken; provided that (i) to the extent any security interest in the Collateral is not have occurred granted or perfected on the Closing Date after Borrower’s commercially reasonable efforts to do so without undue burden or expense (other than the creation and perfection of a Material Adverse Effect.
security interest in Collateral with respect to which a Lien may be perfected solely by (A) All coststhe filing of financing statements under the UCC and (B) the delivery of stock certificates or other certificates, fees and expenses if any, representing Equity Interests (other than Equity Interests constituting Excluded Assets) owned by the Loan Parties (other than any Equity Interests of the Subsidiaries of the Target), and, to the extent delivered to the Borrower by the Target prior to the Closing Date (after the Borrower’s use of commercially reasonable efforts to obtain such certificated equity interests), any Subsidiaries of the Target (other than any such Equity Interests constituting Excluded Assets) that are part of the Collateral), the grant or perfection of such security interest (including, without limitation, legal the security interest on any Material Real Estate Asset that is part of the Collateral) shall not constitute a condition precedent to the availability of the Credit Extension to be made on the Closing Date, but shall be granted or perfected, as the case may be, in accordance with Section 6.11.
(c) The Acquisition shall have been, or shall be, substantially concurrently with the initial funding of the Term A Facility, consummated in accordance with the terms of the Acquisition Agreement, without giving effect to any modifications, amendments or express waivers or consents thereto that are materially adverse to the Lenders in their capacities as such without the prior written consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned); provided that it is understood and agreed that (a) amendments, waivers and other changes by the Borrower (or its Affiliates) to the definition of “Company Material Adverse Effect”, and directions to take action (or refrain from taking action) and consents and requests given or made pursuant to such definition, shall in each case be deemed to be materially adverse to the Lenders and (b) any modification, amendment or express waiver or consent that results in a decrease to the purchase price by not more than 10% shall be deemed to not be materially adverse to the Lenders so long as such reduction is allocated to reduce the commitments under the Term A Facility and the Revolving Credit Facility on a pro rata basis.
(d) All fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the Engagement Letter and Fee Letters shall have been paid or shall have been authorized to be deducted from the proceeds of the initial funding under the Facilities, so long as any such fees or expenses not expressly set forth in the Fee Letters have been invoiced not less than two Business Days prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as The effectiveness of the first date on which the following conditions precedent have been satisfied (this Agreement, and the obligation of each Lender to make an Advance or of the any Issuing Bank to issue a Letter of Credit on Credit, and the occasion occurrence of the Initial Extension of Credit hereunder Closing Date, is subject to the satisfaction of such the following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders Joint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderLender Party:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent timely requested in accordance with by such Lenders, pursuant to Section 2.16(a)2.16.
(ii) The Administrative Agent shall have received a copy of this Agreement duly executed and delivered by each party thereto.
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of (A) the resolutions of the boards board of directors or of each the members or managers of ▇▇▇▇ and each Guarantor the Borrower approving the execution execution, delivery and delivery performance of this Agreement and each other Loan Document to which it is, or is intended to be a partyDocument, and of (B) all documents evidencing other necessary constitutive corporate action and, if any, material and governmental and other third party approvals and consents, if any, with respect to this Agreement, Agreement and the other Transactions and each other Loan DocumentDocuments.
(viv) A copy of a certificate of the charter Secretary of State of the jurisdiction of incorporation or other constitutive document organization of each Loan Party the Borrower, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) of the Borrower and each amendment thereto, certified thereto on file in such Secretary’s office and (as of a date reasonably acceptable B) that (1) such amendments are the only amendments to the Administrative AgentBorrower’s Organizational Documents on file in such Secretary’s office, (2) by if applicable, the Secretary Borrower has paid all franchise taxes to the date of such certificate and (C) the Borrower is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(viv) A certificate of each Loan Party the Borrower, signed on behalf of such Loan Party the Borrower by a Responsible Officer, dated the date of the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; amendments to the Organizational Documents of the Borrower since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(iv), (B) the accuracy a true and completeness correct copy of the bylaws (or other applicable organizational document) operating agreement, as applicable, of such Loan Party the Borrower as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv3.01(a)(iii) were adopted and on the date of the Closing Date, (C) the due incorporation/organization and good standing or valid existence of the Borrower as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, dissolution or liquidation or other termination of the existence of such Loan Party; Borrower, (D) (x) the accuracy in all material respects truth of the representations and warranties made by such Loan Party contained in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all date of the Borrowings Closing Date and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (Ey) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefromDate, that would constitute constitutes a Default; Default and (FE) the absence of a Material Adverse Effect since December 31, 2015current Debt Ratings.
(viivi) A certificate of a Responsible Officer of the Secretary or an Assistant Secretary of each Loan Party Borrower certifying the names and true signatures of the officers of such Loan Party the Borrower authorized to sign this Agreement each Loan Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xivii) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇B▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, LLP counsel to for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 hereto, D hereto and addressing as to such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to Administrative Agent or the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders Joint Lead Arrangers may reasonably request.
(xiiviii) Since Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof.
(b) There has been no event or condition since December 31, 20152018 that has had or could be reasonably expected to have, there shall not have occurred either individually or in the aggregate, a Material Adverse Effect.
(Ac) All costsThere shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document, and there shall have been no adverse change in the status, or financial effect on, the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(d) The Borrower shall have paid (i) all accrued fees of the Joint Lead Arrangers, the Administrative Agent and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior of counsel to the Closing DateJoint Lead Arrangers and the Administrative Agent, and local counsel to the Lender Parties), and (ii) all accrued and unpaid interest, fees, expenses, and reimbursement Obligations pursuant to the terms of the Existing Credit Agreement or otherwise due in respect of the Existing Credit Facilities.
(e) All advances and other compensation contemplated by amounts owing under the Fee Letter and payable to the Agents or the Lender Parties Existing Credit Agreement shall have been paid repaid in full full. The commitments under the Existing Credit Agreement shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in cash a manner acceptable to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to it of the repayment of Administrative Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement, at which time all commitments, security interests Agreement shall have been fully released and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xivf) The Lenders Administrative Agent and the Lender Parties shall have received, at least five three (53) Business Days prior to the Closing Date, an executed Certificate of Beneficial Ownership (in form and substance acceptable to the Administrative Agent and each Lender Party), and shall have received, at least three (3) Business Days prior to the Closing Date all other documentation and other information requested at least seven (7) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under Date in connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation obligations of each L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit Extensions on the occasion of the Initial Extension of Credit hereunder is Closing Date shall, in each case, be subject to the satisfaction (or waiver) of such each of the following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) (x) this Agreement and (y) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date;
(ii) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise delivered to the Administrative Agent in a manner reasonably satisfactory to the Administrative Agent; and
(B) any other documents and instruments as may be necessary or customarily advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) M▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties, and (B) an opinion Faegre B▇▇▇▇ D▇▇▇▇▇▇ LLP, Iowa special counsel to the Loan Parties organized in such jurisdiction, in each case, in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent;
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiaries, Subsidiaries (taken as a whole) on a consolidated basis (the Closing Date after giving effect to the Transactions, from a Responsible Officer of the Borrower, substantially in the form attached hereto as Exhibit J;
(vi) a certificate attesting to the compliance with clauses (c), (d), (f) and (g) of this Section 4.01 on the Closing Date from its Chief Financial a Responsible Officer or other financial officerof the Borrower; and
(vii) a Committed Loan Notice pursuant to Section 2.02.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(Ab) All costs, fees and fees, expenses (including, without limitation, reasonable and invoiced out-of-pocket legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Dateexpenses) and other compensation contemplated by the Fee Letter and Letters payable to the Agents Arrangers, the Administrative Agent or the Lender Parties Lenders under the Facilities on the Closing Date and invoiced at least two (2) Business Days prior to such date shall, upon the initial borrowings under the Facilities, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Facilities).
(c) The Refinancing shall have been paid in full in cash to been, or shall be, consummated substantially concurrently with the extent due initial funding of the Initial Term Loans and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies that the Refinancing has occurred and after giving effect to consummation of all documents or instruments evidencing or necessary to release all Liens the Transactions on the Collateral securing Closing Date, the Borrower and its Subsidiaries shall not have outstanding (i) any Indebtedness other than Indebtedness permitted by Section 7.03 and (ii) any Disqualified Equity Interests; and
(d) The representations and warranties of the Borrower and each other Loan Party, contained in Article 5 or any other Loan Document that are qualified by materiality, shall be true and correct (after giving effect to any qualification therein) on and as of the date of such DebtCredit Extension, and each of the representations and warranties of the Borrower and each other Loan Party, contained in any other Loan Document that are not qualified by materiality, shall be true and correct in all material respects on and as of the date of such Credit Extension, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(xive) The Lenders Administrative Agent shall have received, at least five three (53) days Business Days prior to the Closing Date to the extent requested at least ten (10) Business Days prior to the Closing Date, all documentation and other information that the Administrative Agent, on behalf of itself or any Lender, reasonably determines is required by bank U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAct and the Beneficial Ownership Regulation.
(xvf) For No Default shall exist or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(g) Since December 31, 2020, there shall not have occurred a Material Adverse Effect.
(h) The Administrative Agent shall have received audited consolidated balance sheets of the Borrower and its consolidated Subsidiaries as at the end of each Material Real Propertyof the three fiscal years immediately preceding, and ended more than 120 days prior to, the Closing Date, and related statements of operations, income (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(iloss), stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for each of the three fiscal years immediately preceding, and ended more than 120 days prior to, the Closing Date (Bthe “Annual Financial Statements”).
(i) if such Material Real Property is a Special Flood Hazard PropertyThe Administrative Agent shall have received an unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of, evidence reasonably satisfactory and related statements of operations, income (loss) and cash flows of the Borrower and its consolidated Subsidiaries for, each fiscal quarter (and the corresponding quarter in the prior fiscal year), other than the fourth quarter of the Borrower’s fiscal year, subsequent to the Administrative Agent that date of the Flood Insurance Requirements have been satisfied, most recent audited financial statements of the Borrower and its consolidated Subsidiaries and ended more than sixty (C60) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect days prior to the enforceability and perfection of Closing Date (the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent“Quarterly Financial Statements”).
Appears in 1 contract
Sources: Credit Agreement (Yesway, Inc.)
Conditions Precedent to the Closing Date. This Agreement shall become effective on The amendment and as restatement of the first date Original Credit Agreement on which the following conditions precedent have been satisfied (Closing Date and the obligation obligations of each L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit Extensions on the occasion of the Initial Extension of Credit hereunder is Closing Date (if any) shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date;
(ii) executed copies of (x) this Agreement, and (y) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent;
(v) A copy a certificate attesting to the Solvency of the charter or other constitutive document of each Loan Party Borrower and each amendment thereto, certified its Subsidiaries (taken as of a date reasonably acceptable whole) on the Closing Date after giving effect to the Administrative Agent) by Transactions, from the Secretary of State Chief Financial Officer of the jurisdiction of its incorporation or organizationBorrower, substantially in the form attached hereto as the case may be, thereof as being a true and correct copy thereof.Exhibit K;
(vi) A a certificate attesting to the compliance with clauses (d), (e) and (f) of each Loan Party signed this Section 4.01 on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as from a Responsible Officer of the Closing Date), certifying as to Borrower; and
(Avii) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of if any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit Loans are to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceedsDate, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015Committed Loan Notice pursuant to Section 2.02.
(viib) A certificate All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the Engagement Letter and Fee Letters shall have been paid or shall have been authorized to be deducted from the proceeds of the Secretary initial funding under the Facilities, so long as any such fees or an Assistant Secretary of each Loan Party certifying expenses not expressly set forth in the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
Fee Letters have been have been invoiced not less than three (viii3) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) business days prior to the Closing Date, audited financial statements of ▇▇▇▇ .
(c) The Administrative Agent and its Subsidiaries for each of the Lenders shall have received at least three most recently-ended Fiscal Years ending more than 90 days Business Days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, writing at least five (5) days seven Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAct and the Beneficial Ownership Regulation.
(xvd) For The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Real Property, Adverse Effect” or similar language shall be true and correct (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory after giving effect to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1any qualification therein) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agentall respects.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on The amendment and as restatement of the first date Original Credit Agreement on which the following conditions precedent have been satisfied (Closing Date and the obligation obligations of each L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit Extensions on the occasion of the Initial Extension of Credit hereunder is Closing Date (if any) shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date;
(ii) executed copies of (x) this Agreement, and (y) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent;
(v) A copy a certificate attesting to the Solvency of the charter or other constitutive document of each Loan Party Borrower and each amendment thereto, certified its Subsidiaries (taken as of a date reasonably acceptable whole) on the Closing Date after giving effect to the Administrative Agent) by Transactions, from the Secretary of State Chief Financial Officer of the jurisdiction of its incorporation or organizationBorrower, substantially in the form attached hereto as the case may be, thereof as being a true and correct copy thereof.Exhibit K;
(vi) A a certificate attesting to the compliance with clauses (d), (e) and (f) of each Loan Party signed this Section 4.01 on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as from a Responsible Officer of the Closing Date), certifying as to Borrower; and
(Avii) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of if any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit Loans are to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceedsDate, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015Committed Loan Notice pursuant to Section 2.02.
(viib) A certificate All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the Engagement Letter and Fee Letters shall have been paid or shall have been authorized to be deducted from the proceeds of the Secretary initial funding under the Facilities, so long as any such fees or an Assistant Secretary of each Loan Party certifying expenses not expressly set forth in the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
Fee Letters have been have been invoiced not less than three (viii3) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) business days prior to the Closing Date, audited financial statements of ▇▇▇▇ .
(c) The Administrative Agent and its Subsidiaries for each of the Lenders shall have received at least three most recently-ended Fiscal Years ending more than 90 days Business Days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, writing at least five (5) days seven Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAct and the Beneficial Ownership Regulation.
(xvd) For The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Real PropertyAdverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(e) There has been no change, occurrence or development since September 30, 2019 that could reasonably be expected to have a Material Adverse Effect.
(Af) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing.
(g) The Administrative Agent shall have received a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to it that all insurance required to be maintained pursuant to Section 6.06 is in full force and effect, together with endorsements naming the Administrative Agent that the Flood Insurance Requirements have been satisfiedAgent, and (C) favorable opinions of local counsel for the Loan Parties benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06.
(1h) Substantially concurrently with the consummation of the Transactions, each Mortgage (as defined in states in which the Material Real Property is located, Original Credit Agreement) with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and a Mortgaged Property (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties as defined in the granting Original Credit Agreement) shall be released, and terminated of such Mortgages, in form and substance satisfactory to the Administrative Agentrecord.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ the Borrower and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.as
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Conditions Precedent to the Closing Date. This Agreement shall become effective on The amendment and as restatement of the first date Original Credit Agreement on which the following conditions precedent have been satisfied (Closing Date and the obligation obligations of each L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit Extensions on the occasion of the Initial Extension of Credit hereunder is Closing Date (if any) shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Lenderits legal counsel:
(i) Duly a Note executed counterparts by the Borrower in favor of this Agreement.each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date;
(ii) The Notes payable each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the order Administrative Agent; and
(B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Lenders Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the extent requested Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with Section 2.16(a).their terms;
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies such certificates of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by Agent may reasonably require evidencing the Secretary of State of the jurisdiction of its incorporation or organizationidentity, as the case may be, thereof as being a true authority and correct copy thereof.
(vi) A certificate capacity of each Loan Party signed on behalf of such Loan Party by Responsible Officer thereof authorized to act as a Responsible Officer, dated the Closing Date (the statements made Officer in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign connection with this Agreement and the other documents Loan Documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the which such Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property Party is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.party;
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the The obligation of each Lender to make an Advance or Loans in connection with the initial Borrowing hereunder, and the obligation of the Issuing Bank Lender to issue a Letter of Credit on the occasion of the Initial Extension Letters of Credit hereunder on the Closing Date, is subject to the satisfaction of such the following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The the Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to as of the Lenders Closing Date (unless otherwise specified) and (and, except for the Notes) , in sufficient copies for each Lender:
(i) Duly to the extent requested by any Tranche 1 Lender in accordance with Section 2.4(d), a Note for such Tranche 1 Lender, in each case duly completed in accordance with the provisions of Section 2.4(d) and executed counterparts by each of this Agreement.the Borrowers;
(ii) The Notes payable to the order counterparts of the Lenders to the extent requested in accordance with Section 2.16(a).Security Agreement executed by each Borrower, together with:
(iiiA) The Security Agreementall documents and instruments, together with evidence that all other actions that including Uniform Commercial Code financing statements where applicable, required by law in each applicable jurisdiction or reasonably requested by the Collateral Administrative Agent may reasonably deem necessary to be filed, registered or desirable in order recorded to create or perfect and protect the liens and security interests Liens intended to be created under the Collateral Documents and the required priority thereof has been taken.Security Agreement;
(ivB) Certified results of a recent search of the Uniform Commercial Code (or equivalent) filings made with respect to each Borrower in the jurisdictions contemplated in clause (i) above (including, without limitation, Washington D.C. and Bermuda) and in such other jurisdictions in which Collateral is located on the Closing Date which may be reasonably requested by the Administrative Agent, and copies of the resolutions of financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the boards of directors of Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by the Security Agreement or have been released; and
(C) for each of ▇▇▇▇ and each Guarantor approving Custodial Account, an Account Control agreement with the execution and delivery of this applicable Custodian in the form specified in the Security Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any(appropriately completed), with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (such changes thereto as of a date may be reasonably acceptable to the Administrative Agent and each such Account Control Agreement shall be in full force and effect;
(iii) a certificate, signed by the chief executive officer, chief financial officer, treasurer or comptroller of each Borrower, in form and substance satisfactory to the Administrative Agent, certifying that (A) all representations and warranties of such Borrower contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Closing Date (except representations and warranties which relate solely to a specific earlier date, which shall have been true and correct in all material respects as of such earlier date), both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (B) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the initial Loans hereunder and the application of the proceeds thereof, (C) there are no insurance regulatory proceedings pending or, to such individual’s knowledge, threatened against any Insurance Subsidiary in any jurisdiction that would reasonably be expected to have a Material Adverse Effect, and (D) both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, no event having a Material Adverse Effect has occurred since December 31, 2003 and there exists no event, condition or state of facts that would reasonably be expected to result in a Material Adverse Effect;
(iv) a certificate of the secretary or an assistant secretary of each Borrower, in form and substance reasonably satisfactory to the Administrative Agent, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Borrower, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the its jurisdiction of its incorporation or organization, as and that the case may besame has not been amended since the date of such certification, thereof as being (B) that attached thereto is a true and correct complete copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) similar governing document of such Loan Party Borrower, as then in effect and as in effect on at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (( or persons performing similar functionsgoverning body) of such Person referred to in Section 3.01(a)(iv) were adopted Borrower authorizing the execution, delivery and performance of this Agreement and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Credit Documents to which it is or is to be a party as though made on party, and as to the incumbency and genuineness of the Closing Date, before and after giving effect to all signature of the Borrowings and the issuance each officer of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, Borrower executing this Agreement or resulting from any of the Borrowings or the issuance of any other Credit Documents, and attaching all such copies of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Defaultdocuments described above; and (F) the absence of a Material Adverse Effect since December 31, 2015.and
(viiv) A certificate a favorable opinion of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viiii) CertificatesMayer, in substantially the form of Exhibit I attesting to the Solvency of Brown, ▇▇▇▇ and its Restricted Subsidiaries& Maw LLP, on a consolidated basis (after giving effect special New York counsel to the Transactions)Borrowers, from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of Everest Group, and (iii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, Bermuda counsel to the Loan PartiesBorrowers, all in substantially form and substance reasonably satisfactory to the form Administrative Agent;
(b) The Administrative Agent shall have received a certificate as of Exhibit D-1 heretoa recent date of the good standing of each Borrower under the laws of their respective jurisdictions of organization from the Secretary of State or Insurance Regulatory Authorities (or comparable Governmental Authority) of such jurisdiction;
(c) All legal, tax, accounting, business and addressing such other matters as relating to the Lenders may Borrowers and their Subsidiaries, documentation and corporate or other proceedings incident to the transactions contemplated hereby shall be reasonably request acceptable to the Administrative Agent; all approvals, permits and consents of any Governmental Authorities (including as including, without limitation, all relevant Insurance Regulatory Authorities) or other Persons required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained (without the imposition of conditions that are not reasonably acceptable to Delaware corporate law mattersthe Administrative Agent), and (B) ▇▇▇▇▇▇▇▇all related filings, Loop & ▇▇▇▇▇▇▇▇if any, LLPshall have been made, Michigan counsel to and all such approvals, permits, consents and filings shall be in full force and effect and the Loan PartiesAdministrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in substantially each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any of the form other Credit Documents or the consummation of Exhibit D-2 hereto and addressing such other matters as the Lenders may transactions contemplated hereby or thereby, or that would reasonably request.be expected to have a Material Adverse Effect;
(xiid) Since December 31, 20152003, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any event having a Material Adverse Effect or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Effect.;
(Ae) All costsThe Borrowers shall have paid (i) to the Arranger and Wachovia, the fees required under the Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Fee Letter, and (iii) all other fees and reasonable expenses (includingof the Arranger, without limitation, legal fees the Administrative Agent and expenses for which ▇▇▇▇ has received an invoice at least one (1) day the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing DateDate (including reasonable fees and expenses of counsel) in connection with this Agreement and other compensation the transactions contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and hereby;
(Bf) the The Administrative Agent shall have received evidence reasonably satisfactory to it a Covenant Compliance Worksheet, duly completed and certified by the chief financial officer, treasurer or comptroller of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests Everest Group and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent, demonstrating the Borrowers’ compliance with the financial covenants set forth in Sections 7.1 and 7.2, determined on a pro forma basis as of September 30, 2004 after giving effect to the making of the initial Loans (if any) hereunder and the consummation of the transactions contemplated hereby;
(g) The Administrative Agent shall have received evidence satisfactory to it that all amounts outstanding with respect to the Existing Reimbursement Agreement shall be repaid and satisfied in full and all commitments to extend credit under the Existing Reimbursement Agreement shall be terminated;
(h) The Administrative Agent shall have received satisfactory confirmation from A.M. Best Company that the current financial strength rating of each Material Insurance Subsidiary that has such a rating is “A-” or better;
(i) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of each Borrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder; and
(j) The Administrative Agent shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) Duly executed counterparts of this Agreement and the Intercreditor Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The A security agreement in substantially the form of Exhibit G hereto (the “Security Agreement”), duly executed by each Loan Party, together with evidence that with:
(A) certificates representing the Initial Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank (except to the extent pledged to the “Collateral Agent” under the Term Facility pursuant to the Term Facility Loan Documents),
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all other actions jurisdictions that the Collateral Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral Documents described in the Security Agreement, in each case completed in a manner in conformance with the UCC,
(C) completed requests for information, dated on or before the Closing Date listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) an intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party,
(E) evidence of the insurance required by the terms of the Security Agreement, and
(F) evidence that all other action that the Administrative Agent may deem reasonably necessary to establish that the Collateral Agent has perfected first priority (subject to Permitted Liens) security interests in the Revolving Facility Collateral and perfected second priority (subject to Permitted Liens) security interests in the Term Facility Collateral shall have been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements), and, in connection with real estate collateral, the Collateral Agent shall have received all Real Estate Closing Deliverables with respect to each parcel of Material Real Property, except with respect to any Mortgage or Real Estate Closing Deliverable that is not required priority thereof has been takento be delivered until after the Closing Date in accordance with Section 5.01(u) hereof.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ the Borrower and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Reorganization Plan, this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv3.01(a)(iii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties Specified Representations made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Company Material Adverse Effect since December 31July 26, 20152007.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I L attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiarieseach Guarantor, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) unaudited financial statements for the month of October 2007 and each month thereafter at least five 30 days after the end of any such month (5other than December or January) days prior to until the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing DateDate occurs; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactionsstatements, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ the Borrower dated May 5November 6, 20162007 (it being acknowledged that such pro forma financial statements have been received as of the date hereof and are satisfactory).
(x) To the extent applicable, a A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇J▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLPDay, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Initial Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇S▇▇▇▇▇▇▇, Loop & ▇K▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Initial Lenders may reasonably request.
(xii) The Bankruptcy Court shall have entered a final non-appealable order (other than with respect to any material appeals reasonably consented to by the Initial Lenders and the Agents) (the “Confirmation Order”) confirming a Chapter 11 plan of reorganization (the “Reorganization Plan”) in respect of any Cases of any Loan Parties in accordance with Section 1129 of the Bankruptcy Code, which Reorganization Plan shall be substantially as set forth in the Third Amended Plan dated October 23, 2007 (together with all exhibits and other attachments thereto, as any of the foregoing shall be amended, modified or supplemented from time to time or any of the terms or conditions thereof waived (with the consent of the Initial Lenders and the Agents with respect to any amendment, modification, supplement or waiver that is adverse to the Lenders, as reasonably determined by the Initial Lenders and the Agents), the “Plan Documents”), or otherwise reasonably satisfactory to the Initial Lenders and the Agents.
(b) The Reorganization Plan shall have, or contemporaneous with the effectiveness of the Senior Credit Facilities and the making of the initial loans thereunder will, become effective as of the Plan Effective Date. The Confirmation Order shall be in form and substance satisfactory to the Initial Lenders and the Agents, shall have been entered on the docket of the Bankruptcy Court in full force and effect, shall not have been stayed, reversed, vacated or otherwise modified in any manner that is materially adverse to the rights or interests of the Lenders (unless otherwise reasonably satisfactory to the Initial Lenders and the Agents).
(c) After giving effect to all borrowings and issuances of Letters of Credit on the Closing Date, and to all other Transactions, Availability of the Borrower shall be no less than $200,000,000.
(d) The transactions contemplated by the Plan Documents shall have been consummated substantially contemporaneously with the effectiveness and initial funding of the Senior Credit Facilities on the Closing Date.
(e) The Lender Parties shall be satisfied that all Existing Debt (that is not Surviving Debt), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished, all commitments relating thereto terminated and all liens or security interests related thereto shall have been terminated.
(f) Since December 31July 26, 20152007, there shall not have occurred a Company Material Adverse Effect.
(Ag) [Reserved].
(h) All costs, fees and expenses (including, without limitation, legal fees and expenses expenses, title premiums, survey charges and recording taxes and fees for which ▇▇▇▇ the Borrower has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Commitment Letter and the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debtpayable.
(xivi) The Lenders shall have received, at least five ten (510) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on is subject to and as conditional upon the prior fulfilment of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent the Administrative Agent and the Lenders:
13.1.1 On or prior to 4:00 p.m. (Toronto time) on the Banking Day before or concurrently with the Closing Date):
(a) The , the Administrative Agent shall have received on or before from the Closing Date Borrower, in sufficient quantities to provide one copy to each Lender and to the Administrative Agent, the following, each dated such day (unless otherwise specified), as of a date satisfactory to the Lenders and in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderLenders:
(i) Duly 13.1.1.1 this Agreement duly executed counterparts of this Agreement.
(ii) The Notes payable to by the order of Obligors, the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.Administrative Agent;
(iv) Certified 13.1.1.2 the Intercreditor Agreement duly executed by the Obligors, the Lenders, the Hedge Providers and the Administrative Agent;
13.1.1.3 certified copies of the resolutions of the boards of directors charter and by-laws of each Obligor and of ▇▇▇▇ all documents and each Guarantor resolutions evidencing necessary corporate action on their part approving and authorizing the execution execution, delivery and delivery performance of this Agreement and each the other Loan Document Documents to which it is, or is intended to be a party, party and of all documents evidencing any other necessary constitutive corporate action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions Loan Documents and each other Loan Document.
(v) A copy of the charter instruments, certificates or other constitutive document documents contemplated herein, and approving and authorizing the manner in which and by whom the foregoing documents are to be executed and delivered;
13.1.1.4 a certificate of status, compliance, good standing or like certificate with respect to each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) Obligor issued by the Secretary of State appropriate government officials of the jurisdiction of its incorporation or organizationamalgamation, as the case may beapplicable, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made jurisdiction in which certificate shall be true they carry on and as business if applicable;
13.1.1.5 certified copies of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceedsRequired Approvals, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute ;
13.1.1.6 a Default; and (F) the absence certificate of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary Responsible Officer of each Loan Party Obligor certifying the names and true signatures signature of the their officers of such Loan Party authorized to sign this Agreement and Agreement, the other Loan Documents and any other documents or certificates to be delivered hereunder.pursuant to this Agreement;
(viii) Certificates, 13.1.1.7 certificates of insurance in substantially accordance with the form requirements of Exhibit I attesting Section 14.4;
13.1.1.8 copies of any existing Phase 1 environmental assessment and environmental audits in respect of all Material Real Property owned or leased by the Obligors which have not previously been delivered to the Solvency of ▇▇▇▇ Administrative Agent;
13.1.1.9 the Guarantees and its Restricted SubsidiariesSecurity Documents duly authorized, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ executed and its Subsidiaries for delivered by each of the three most recently-ended Fiscal Years ending more than 90 days prior Obligors parties hereto to the Closing Date; extent required by the Collateral and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect Guarantee Requirement to the Transactions, in each case prepared in extent such Security Documents have not previously been delivered to the Administrative Agent;
13.1.1.10 a manner consistent with certificate of a Responsible Officer of the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issuedBorrower certifying that, on the Closing Date., the Borrower is in compliance with the financial ratios set forth in Section 14.2.1;
13.1.1.11 certified copy of the Term Loan Agreement including all amendments thereto;
13.1.1.12 the results of Lien searches of all filings, registrations or recordings of or with respect to all the Assets (xiother than real property) A favorable of the Obligors (i) for Canadian Obligors, in each jurisdiction in which their respective Assets are located or they have an office (which Assets in such jurisdiction have a value exceeding $1,000,000), and (ii) for US Obligors, in their jurisdiction of organization, in each case, together with such other documents that the Lenders shall reasonably require evidencing, to the entire satisfaction of the Lenders, that all such Assets are free and clear of all Liens, other than Permitted Liens;
13.1.1.13 a favourable opinion of (A) S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, WeissCanadian counsel to the Borrower, Rifkind, and S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇▇, ▇ LLP, United States counsel to the Loan PartiesBorrower, in substantially form and substance acceptable to the form of Exhibit D-1 heretoAdministrative Agent and the Lenders, and addressing such other matters as addressed to the Administrative Agent, the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) L▇▇▇▇▇▇▇▇, Loop & ’ Counsel; and
13.1.1.14 a favourable report of L▇▇▇▇▇▇▇▇’ Counsel, LLP, Michigan counsel addressed to the Loan PartiesAdministrative Agent and to each Lender;
13.1.2 each of the Security Documents or financing statements, notices or applications in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31respect thereof, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid duly registered, filed and recorded against all Material Real Property of each Obligor, if any, and in full all other places and in cash all jurisdictions which the Lenders shall require, to the extent due entire satisfaction of the Lenders and payable Lenders’ Counsel and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it the Lenders and Lenders’ Counsel of such registrations, recordings or filings and that the repayment Security Interests thereunder constitute valid, effective and perfected first priority Security Interests, subject only to Permitted Liens, except with respect to the delivery of all Debt under the Existing Credit Agreement, at which time all commitments, security interests Security Documents and guarantees related confirmation of title insurance in respect of Material Real Property for those Obligors that are becoming Obligors as of the Closing Date, in which case such Debt and documents shall be delivered, unless otherwise agreed by the related documents thereunder will be terminatedAdministrative Agent, returned and discharged within 180 days following Closing;
13.1.3 receipt by the Administrative Agent of all estoppel letters reasonably required by the Administrative Agent in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently accordance with the Initial Extension requirements of Credit hereunderSchedule 15.1, to the extent not previously delivered to the Administrative Agent copies Agent;
13.1.4 receipt by each Lender of all information and documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable such Lender to meet its obligations with respect to “know your customer” and anti-money laundering rules and regulationsrules under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and its regulations (or similar Applicable Law);
13.1.5 no event has occurred which constitutes a Material Adverse Effect since June 30, including without limitation2021;
13.1.6 the commitment fees, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage letter of credit fronting fees and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions Letter of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, Credit Commissions payable with respect to the enforceability Facility B Credit under the Original Credit Agreement for the period from and perfection including July 1, 2021 to the Closing Date and any other amounts payable with respect to the Facility B Credit shall have been paid or be paid out of the applicable Mortgages proceeds of the initial Advance under Facility A Credit;
13.1.7 all amounts due and any related fixture filings in form payable on or before the initial Advance by the Borrower pursuant to this Agreement and substance satisfactory to the other Loan Documents, including reasonable out of pocket costs, work fees and reasonable legal fees of the Administrative Agent and the Lenders (2) in states in which including reasonable legal fees of Lenders’ Counsel), shall have been paid or be paid out of the Loan Parties party to proceeds of the applicable Mortgages are organized or formed, with respect to initial Advance under Facility A Credit; and
13.1.8 receipt by each Lender of a five-year consolidated financial forecast of the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative AgentCanadian Borrower.
Appears in 1 contract
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as the obligations of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender Lenders to make an Advance or of the Issuing Bank to issue a Letter of Credit exchange Loans hereunder on the occasion of the Initial Extension of Credit hereunder is Closing Date pursuant to Section 2.01 are subject to the satisfaction (or waiver by the Required Lenders) of such the following conditions precedent before or concurrently with the Closing Date):precedent:
(a) Subject to Section 5.15, the Administrative Agent shall have received (i) a counterpart of this Agreement, the Guarantee Agreement, the Pledge and Security Agreement, the UK Debenture, the UK Trust Deed, the UK Share Charges, the ▇▇▇▇▇ Dutch Pledge, the Intabex Dutch Pledge, the Agent Fee Letter and, subject to Section 5.15, each other Loan Document (in each case in form and substance satisfactory to the requisite Lenders in accordance with the Support Agreement) signed on behalf of each party hereto and thereto (including via any electronic means) or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic imaging transmission) that such party has signed such a counterpart.
(b) The Administrative Agent shall have received received, on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts behalf of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents itself and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each Lenders, a favorable written opinion of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ LLP, counsel to for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A., counsel for certain Loan Parties, of ▇▇▇▇▇▇▇▇, ▇▇▇ LLP, Michigan counsel for the Lenders, and of De Brauw Blackstone Westbroek N.V., counsel for the Lenders, in each case (i) dated the Closing Date, (ii) addressed to the Administrative Agent and the Lenders, and (iii) in form and substance reasonably satisfactory to the Required Lenders, covering such matters customarily covered in opinions of this type as the Required Lenders shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.
(c) The representations and warranties of the Borrower and each other Loan Party contained in Article III or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(d) Immediately prior to and immediately after the Closing Date, no Default or Event of Default shall have occurred and be continuing.
(e) The making of such Loan shall not violate any Requirement of Law applicable to the Loan Parties, and shall not be enjoined, temporarily, preliminarily or permanently.
(f) The Administrative Agent shall have received a certificate, dated as of the Closing Date and signed by a Financial Officer of the Borrower, certifying compliance with the conditions precedent set forth in substantially paragraphs (c), (d) and (e) of this Section 4.01.
(g) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03.
(h) Subject to Section 5.15, the form Administrative Agent shall have received (i) a copy of Exhibit D-2 hereto the certificate or articles of incorporation (or the foreign equivalent), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and, except in the case of any Foreign Guarantor, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (in each case or the foreign equivalent, if any); (ii) a certificate of the Responsible Officer of each Loan Party (or, in the case of a Foreign Guarantor, a certificate of an equivalent officer or a director of such Loan Party) dated the Closing Date and addressing certifying (A) that attached thereto is a true and complete copy of the constitutional documents, articles of association, memorandum of association, certificate of incorporation and by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or its equivalent) of such Loan Party (and, in the case of any Foreign Guarantor, of resolutions duly passed by its members, if applicable) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) where required by local law or the relevant constitutional documents, that attached thereto is a true and complete copy of either (1) written resolutions of the requisite shareholder(s) (or its equivalent) of such Loan Party, or (2) resolutions adopted by the general meeting of shareholder(s) (or its equivalent) of such Loan Party, in each case authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded, or amended and are in full force and effect, (D) that the certificate or articles of incorporation, constitutional documents, articles of association and memorandum of association of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing (or the foreign equivalent, if any) furnished pursuant to clause (i) above, (E) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and (F) except in the case of any UK Loan Party, as to the absence of any pending proceeding for dissolution or liquidation of such Loan Party or, to the knowledge of such Responsible Officer, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (ii) above; (iv) in the case of a UK Loan Party, a certificate of a director confirming that the entry into the Loan Documents and the transactions contemplated by the Loan Documents would not exceed any guarantee or security limits under the constitutional documents of such UK Loan Party or under any other agreement or instrument to which such UK Loan Party is a party; and (v) such other matters documents as the Required Lenders may reasonably request.
(xiii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days Business Days prior to the Closing Date, to the extent requested at least eight Business Days prior to the Closing Date, (i) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe USA PATRIOT Act and (ii) if the Borrower qualified as a “legal entity customer” under the Beneficial Ownership Regulation, a customary certification regarding beneficial ownership required by the Patriot ActBeneficial Ownership Regulation in relation to the Borrower.
(xvj) For Except as set forth in Section 5.15, the Senior Collateral Agent shall have received evidence that each Material Real PropertyLoan Party shall have taken or caused to be taken any action, executed and delivered or cause to be executed and delivered any other agreement, document and instrument (Aincluding any intercompany notes and allonges pursuant to 5.13(d)) a Mortgage and Mortgage Policy delivered made or caused to be made any other filing and recording reasonably required by the Senior Collateral Agent and the Lenders.
(k) Prior to or substantially simultaneously therewith, the Administrative Agent shall have received the fees in the amounts previously agreed in writing by the Agents, and all reasonable and documented fees and expenses incurred in connection with the Transactions (including the reasonable fees, disbursements and other charges of counsel to the extent payable in accordance with the terms hereof) payable by the Loan Parties (with respect to expenses, to the extent invoices have been presented at least one Business Day prior to such date) shall have been paid.
(l) Except as set forth in Section 5.15, the Administrative Agent shall have received all insurance policies and certificates pursuant to and in accordance with Section 5.01(i5.03(b).
(m) Except as set forth in Section 5.15 and in respect of the UK Loan Parties and UK Security Documents, all documents and instruments necessary to establish that the Senior Collateral Agent will have perfected security interests in the Collateral pursuant to the provisions of the Security Documents to be entered into on the Closing Date shall have been delivered in copy form to the Senior Collateral Agent and, if applicable, be in proper form for filing on or around the Closing Date, including UCC-1 financing statements and UCC-3 financing statements and the Intellectual Property Security Agreements.
(Bn) if such Material Real Property is The Administrative Agent shall have received a Special “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property, evidence reasonably satisfactory in form and substance acceptable to the Administrative Agent that (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower and applicable Subsidiary and evidence of flood insurance, in the event any improvements are located in a special flood hazard area) in accordance with the Flood Insurance Requirements have been satisfiedLaws.
(o) Prior to or substantially simultaneously therewith, the following documentation shall be entered into and (C) favorable opinions of local counsel for the Loan Parties (1) effective, which documentation shall in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings each case be in form and substance satisfactory to the Administrative Agent requisite Lenders in accordance with the Support Agreement:
(i) that certain Limited Consent and (2) in states in which the Loan Parties party Amendment to the applicable Mortgages are organized or formedABL Credit Agreement, with respect to the valid existencedated as of January 5, corporate power and authority of 2023; it being understood that such Loan Parties in the granting of such Mortgages, agreement is in form and substance satisfactory to such requisite Lenders;
(ii) [reserved];
(iii) the Administrative AgentSecond Supplemental Indenture;
(iv) the New Notes Indenture;
(v) the New Pyxus Credit Agreement;
(vi) the ABL Intercreditor Agreement; it being understood that the form attached to the Offering Memorandum is satisfactory to such requisite Lenders; and
(vii) the Intercreditor and Collateral Agency Agreement; it being understood that the form attached to the Offering Memorandum is satisfactory to such requisite Lenders.
(p) Prior to or substantially simultaneously therewith:
(i) the Notes Exchange Offer shall have been consummated with the participation of at least a majority of the outstanding principal amount of the Existing Notes;
(ii) (x) the Exit Term Loan Exchange Transactions shall have been consummated with the participation of 100% of the principal amount of the Existing Exit Term Loans, (y) all accrued and unpaid Cash Interest (as defined in the Existing Exit Term Loan Credit Agreement) in respect of the Assigned Exit Term Loans shall have been paid in full in cash and (z) the Existing Exit Term Loan Credit Agreement shall have been terminated; and
(iii) (x) the Intabex Term Loan Exchange Transactions shall have been consummated with the participation of 100% of the principal amount of the Existing Intabex Term Loans, (y) all accrued and unpaid Interest (as defined in the Existing Intabex Term Loan Credit Agreement) in respect of the Assigned Intabex Term Loans shall have been paid in full in cash and (z) the Existing Intabex Term Loan Credit Agreement shall have been terminated;
(q) There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in any court or before any arbitrator or Governmental Authority that affects the Transactions or otherwise impairs the ability of the Loan Parties to consummate the Transactions and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Agents or the Lenders.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Pyxus International, Inc.)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation agreement of each Lender and L/C Issuer to make an Advance or of the Issuing Bank Credit Extensions requested to issue a Letter of Credit be made on the occasion of the Initial Extension of Credit hereunder Closing Date is subject to the satisfaction of such conditions precedent before of, or waiver in accordance with Section 10.01, prior to or concurrently with the making of such Credit Extensions on the Closing DateDate of the following conditions precedent (unless characterized as post-closing obligations pursuant to Section 6.17 and set forth on Schedule 6.17):
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement and each Guaranty, each of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each dated the Closing Date and each in form and substance satisfactory to the Administrative Agent and each of the Lenders;
(b) The Administrative Agent’s receipt of each of the agreements, documents, instruments and other items set forth on the closing checklist attached hereto as Schedule 4.01 (the “Closing Checklist”), each of which shall have received be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and the Arranger.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, including fees payable pursuant to Section 2.09.
(d) The Borrower shall have paid all fees, charges and disbursements of counsel to the followingAgents (directly to such counsel if requested by the Agents) to the extent invoiced prior to or on the Closing Date, each dated plus such day 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 (unless otherwise specifiedprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents), including title premiums, survey charges and recording taxes or fees.
(e) Each Loan Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Lenders (unless Administrative Agent and Arranger. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise specified) impose adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof and (except no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the Notes) in sufficient copies foregoing shall be pending, and the time for each Lender:
(i) Duly executed counterparts of this Agreementany applicable agency to take action to set aside its consent on its own motion shall have expired.
(iif) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at At least five (5) 10 days prior to the Closing DateDate (or such shorter period agreed to by the Lenders), audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitationthe Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Patriot “PATRIOT Act”).
(xvg) For Borrower shall have been assigned a corporate family rating from ▇▇▇▇▇’▇, a corporate credit rating from S&P and the Loans shall have been assigned a credit rating from each Material Real Propertyof ▇▇▇▇▇’▇ and S&P.
(h) The Arranger shall have received evidence satisfactory to the Arranger that the pricing for the initial public offering of the Equity Interest in Holdings has occurred.
(i) The Arranger shall have received a certificate of a Responsible Officer of Borrower, attaching and certifying that (A) a Mortgage attached thereto are true and Mortgage Policy delivered in accordance with Section 5.01(i)correct copies of (i) the Share Purchase Agreement, dated March 20, 2014, by and between Holdings and Samsung Electronics and (ii) the Share Purchase Agreement, dated March 20, 2014, by and between Holdings and Samsung Fine Chemicals, and (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and no breach or default has occurred under any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties agreements and that each such agreement is in the granting of such Mortgages, in form full force and substance satisfactory to the Administrative Agenteffect and has not been terminated.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ the Borrower and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ the Borrower and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ the Borrower and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ the Borrower dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.law
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The A certificate of each Loan Party signed on behalf of such Loan Party, the Administrative Agent and the Collateral Agent, dated the Closing Date, amending certain provisions of the Security AgreementAgreement and certifying that the Collateral Documents to which such Loan Party is a party and all the Collateral described therein do, and shall continue to secure, payment of all of the Secured Obligations (in each case, as defined in the applicable Collateral Document) (the “Amendment No. 2 to Revolving Facility Security Agreement and Collateral Document Confirmation”), together with evidence that all other actions action that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ the Borrower and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 20152009.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I L attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiarieseach Guarantor, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ the Borrower and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ the Borrower and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ the Borrower dated May 5February 2, 20162011.
(x) [RESERVED.]
(xi) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xixii) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xiixiii) With respect to any Flood Hazard Property, (i) the applicable Loan Party's written acknowledgment of receipt of written notification as to the fact that a Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (ii) copies of the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent and naming the Collateral Agent as sole loss payee on behalf of the Lenders.
(xiv) [RESERVED.]
(xv) [RESERVED.]
(xvi) Since December 31, 20152009, there shall not have occurred a Material Adverse Effect.
(Axvii) [RESERVED.]
(xviii) All costs, fees and expenses (including, without limitation, legal fees and expenses expenses, title premiums, survey charges and recording taxes and fees for which ▇▇▇▇ the Borrower has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Commitment Letter, the Administrative Agent Fee Letter and the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debtpayable.
(xivxix) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation agreement of each Lender to make an Advance or of the Issuing Bank Loans requested to issue a Letter of Credit be made by it under this Agreement on the occasion of the Initial Extension of Credit hereunder Closing Date is subject to the satisfaction of such conditions precedent before satisfaction, or waiver in accordance with Section 10.01, prior to or concurrently with the making of such Loans on the Closing Date):, of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) executed counterparts of this Agreement, duly executed by each Loan Party;
(ii) executed counterparts of the Guaranty, duly executed by each Guarantor;
(iii) executed counterparts of an amendment to the First Lien Credit Agreement, duly executed by each Loan Party party thereto, sufficient lenders under the First Lien Credit Agreement to give effect to such amendment and the First Lien Agent, providing for, among other things, the permitted incurrence of the Loans hereunder on the terms described herein and the granting of the Liens to secure the Obligations on the terms described in the Security Documents and the Intercreditor Agreement, which amendment shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent;
(iv) executed counterparts of the Intercreditor Agreement, duly executed by each Loan Party and the First Lien Agent;
(b) The Administrative Agent's receipt of the following, each of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of the Pledge and Security Agreement duly executed by each Loan Party, together with:
(A) evidence that the First Lien Agent, as bailee for the Secured Parties, shall have “control” (for purposes of the UCC) in (i) certificates representing the Pledged Equity Interests referred to therein, accompanied by undated stock powers executed in blank in the case of certificated Pledged Equity Interests and (ii) any other possessory collateral pursuant to the Pledge and Security Agreement such that the Secured Parties shall have a perfected Second Priority Lien therein,
(B) a Perfection Certificate duly executed by Responsible Officers of each Loan Party dated the Closing Date and the results of a recent lien search in each of the jurisdictions where the Loan Parties are organized or where assets of the Loan Parties are located, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.01 or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent,
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement,
(D) evidence of the completion of all actions required pursuant to the Pledge and Security Agreement with respect to the attachment, perfection, and protection of priority of security interests in the Collateral, including without limitation any actions required with respect to IP Rights, securities, instruments, deposit accounts (subject to Section 6.17(b) of this Agreement) and securities accounts, and including all other actions, recordings and filings of or with respect to the Collateral or the Pledge and Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement has been taken;
(ii) subject to Section 6.17, with respect to each of the Mortgaged Properties:
(A) executed counterparts of the Mortgage on such parcel of Mortgaged Property, and evidence that a counterpart of the Mortgage has been either recorded or registered in all places to the extent necessary or, in the reasonable opinion of the Administrative Agent, desirable to effectively create a legal, valid and enforceable Second Priority perfected mortgage, charge, hypothec, deed of trust or deed to secure debt lien on each Mortgaged Property in favor of the Administrative Agent for the benefit of the Secured Parties, securing the Obligations (and with respect to Mortgaged Properties leased by the Borrower, or the applicable Loan Party, as tenant, together with landlord consents, if required pursuant to the lease relating to such leased Mortgaged Property and assurances, in form and substance reasonably satisfactory to the Lenders Administrative Agent);
(unless otherwise specifiedB) and (except if requested by the Administrative Agent, proper fixture filings under the UCC or notices of security interest under the UCC for filing under the UCC in the appropriate jurisdiction in which the parcel of Mortgaged Property is located, necessary or desirable to perfect the security interests in fixtures purported to be created by the Mortgage in favor of the Administrative Agent for the Notes) in sufficient copies for each Lender:benefit of the Secured Parties;
(iC) Duly executed counterparts an opinion of this Agreement.counsel in the state in which such parcel of Mortgaged Property is located and an opinion of counsel in the jurisdiction of formation of the Loan Party entering into the relevant Mortgage, in each case, in form and substance and from counsel reasonably satisfactory to the Administrative Agent;
(iiD) The Notes payable a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to Mortgaged Properties located in the order United States or equivalent determination in any other jurisdiction with respect to each parcel of Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the Lenders Borrower or the applicable Loan Party, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area);
(E) Surveys with respect to each Mortgaged Property; and
(F) such other information, documentation, and certifications as may be reasonably required by the extent requested in accordance with Section 2.16(a).Administrative Agent;
(iii) The Security Agreement, together with evidence that all other actions that Notes executed by the Collateral Agent may reasonably deem necessary or desirable Borrower in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.favor of each Lender requesting Notes;
(iv) Certified copies such certificates of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by Agent may require evidencing the Secretary of State of the jurisdiction of its incorporation or organizationidentity, as the case may be, thereof as being a true authority and correct copy thereof.
(vi) A certificate capacity of each Loan Party signed on behalf of such Loan Party by Responsible Officer thereof authorized to act as a Responsible Officer, dated the Closing Date (the statements made Officer in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign connection with this Agreement and the other documents Loan Documents to be delivered hereunder.which such Loan Party is a party;
(viiiv) Certificatessuch documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, is validly existing, in substantially the form good standing and qualified to engage in business in its jurisdiction of Exhibit I attesting to the Solvency of ▇▇▇▇ formation and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To in the extent applicablecase of the Borrower, also in California, New York, Oregon, Missouri, New Hampshire and Washington, (y) in the case of MEMC Pasadena, Inc., a Notice Guarantor, also in Louisiana, and (z) in the case of Borrowing for any Borrowing to be madethe Sun Edison, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issueda Guarantor, on the Closing Date.also in California, Oregon, Massachusetts, Colorado, Maryland, Texas and New Jersey;
(xivi) A a favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially in substantially the form of Exhibit D-1 G hereto;
(vii) a certificate of a Responsible Officer of the Borrower:
(A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which it is a party, and addressing such other matters as the Lenders may reasonably request consents, licenses and approvals shall be in full force and effect, or (including as to Delaware corporate law matters)y) stating that no such consents, and licenses or approvals are so required;
(B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to certifying that the Loan Parties, conditions specified in substantially the form of Exhibit D-2 hereto Sections 4.01(f) and addressing such other matters as the Lenders may reasonably request.(g) have been satisfied; and
(xiiC) Since December 31certifying that (x) there has been no event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, 2015either individually or in the aggregate, there shall not have occurred a Material Adverse Effect., and (y) there is no claim or proceeding initiated that purports or seeks to adversely affect this Agreement, any other Loan Document or any other material aspect of the transactions contemplated hereby;
(Aviii) All costs, fees and expenses a duly executed solvency certificate of the Chief Financial Officer (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior or another financial officer satisfactory to the Closing DateAdministrative Agent) of the Borrower in form and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence substance reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies and each of all documents the Lenders and confirming the representation and warranty set forth in Section 5.19;
(ix) certificates of insurance and/or other evidence, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating compliance with the insurance requirements of this Agreement;
(x) such other assurances, certificates, documents, consents or instruments evidencing opinions as the Administrative Agent or necessary the Required Lenders reasonably may require;
(c) Any fees required to release all Liens be paid on or before the Collateral securing such DebtClosing Date shall have been paid, including without limitation, the Closing Fee and the other fees payable pursuant to Section 2.09.
(xivd) The Lenders Borrower shall have receivedpaid all fees, at charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent), including without limitation, title premiums, survey charges and recording taxes or fees.
(e) At least five (5) 10 days prior to the Closing DateDate (or such shorter period agreed to by the Lenders), the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitationthe Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) the Patriot “PATRIOT Act”).
(xvf) For The representations and warranties of (i) the Borrower contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, with respect to any representation or warranty that is itself modified or qualified by materiality or a “Material Real PropertyAdverse Effect” standard, such representation or warranty shall be true and correct in all respects) on and as of the Closing Date.
(Ag) No Default or Event of Default shall exist, or would result from the Closing Date proposed Borrowing or the application of the proceeds thereof. No default or event of default under the First Lien Credit Agreement shall exist, or would result from the Closing Date proposed Borrowing or the application of the proceeds thereof.
(h) The Administrative Agent shall have received a Mortgage and Mortgage Policy delivered Borrowing Notice in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory 2.02. The delivery of the Borrowing Notice by the Borrower to the Administrative Agent Lender on or prior to the Closing Date shall be deemed to be a representation and warranty that the Flood Insurance Requirements conditions specified in Sections 4.01(f) and (g) have been satisfied, satisfied (or waived in accordance with Section 10.01) on and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection as of the applicable Mortgages and any related fixture filings in form and substance satisfactory Closing Date.
(i) Each Lender shall have funded its Commitment under this Agreement on the terms contained herein or otherwise on terms mutually agreed to by the Administrative Agent and (2) such other Lenders. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in states in which this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Loan Parties party Administrative Agent shall have received notice from such Lender prior to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Memc Electronic Materials Inc)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as The occurrence of the first date on which Closing Date is subject to satisfaction or waiver of the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Agent shall have received on or before issuance of the Closing Date the following, each dated such day (unless otherwise specified), in form Bonds and substance reasonably satisfactory submission to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient Agent of duplicate originals or certified copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, submitted in connection with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy issuance of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed Bonds on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to which shall be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent;
(b) receipt by the Issuing Bank and the Agent of the following, in each case in the form approved by the Agent on the Closing Date:
(i) this Agreement and the PPA LOC Loan Note duly executed by the Company;
(ii) an original of each of the Security Documents, duly executed by the parties thereto;
(iii) a copy of each other Financing Document, certified by the Company as to completeness and authenticity;
(iv) written opinions of counsel acceptable to the Agent, addressed to the Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formedBanks, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative AgentAgent and covering such matters as the Agent may reasonably request;
(v) evidence satisfactory to the Agent that each of the parties to the Project Contracts, Financing Documents and Security Documents shall have duly and irrevocably appointed a process agent to act for and on behalf of such person, to receive summonses and other legal process in connection with any suit, action or proceeding relating to such documents in the jurisdictions in which it is required to submit to such jurisdiction and such appointment shall have been accepted and all fees scheduled to accrue to each such agent for the service of process shall have been paid in full; and
(vi) evidence satisfactory to the Agent that all actions necessary or appropriate in order to effectively establish, create or perfect the security interest have been duly taken.
(c) payment by the Company of all accrued fees and expenses (as provided in Sections 2.5 and 9.4) of the Agent and the Banks (including the reasonable accrued fees and disbursements of counsel to the Agent and the Banks), to the extent that one or more statements for such fees and expenses have been presented for payment.
Appears in 1 contract
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as obligations of the first date on which the following conditions precedent have been satisfied (each L/C Issuer and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit Extensions on the occasion of the Initial Extension of Credit hereunder is Closing Date shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date;
(ii) executed copies of (x) this Agreement, and (y) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent;
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiaries, Subsidiaries (taken as a whole) on a consolidated basis (the Closing Date after giving effect to the Transactions), from its the Chief Financial Officer or other financial officerof the Borrower, substantially in the form attached hereto as Exhibit B;
(vi) a certificate attesting to the compliance with clauses (c), (d), (f) (g) and (h) of this Section 4.01 on the Closing Date from a Responsible Officer of the Borrower;
(vii) a Committed Loan Notice pursuant to Section 2.02; and
(viii) copies of a recent Lien search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties.
(ixb) Copies All fees and expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the Engagement Letter and Fee Letters shall have been paid or shall have been authorized to be deducted from the proceeds of the initial funding under the Facilities, so long as any such fees or expenses not expressly set forth in the Fee Letters have been have been invoiced not less than three (i3) at least five (5) business days prior to the Closing Date.
(c) Substantially concurrently with the initial funding of the Term B Facility, audited financial statements all existing third party debt for borrowed money of ▇▇▇▇ the Borrower and its Restricted Subsidiaries under the Bridge Facility Agreement shall be repaid, all commitments thereunder and all liens and security interests granted in connection therewith shall be terminated and after giving effect to the consummation of the Transactions on the Closing Date, the Borrower and its Subsidiaries for each shall have outstanding (i) no Indebtedness other than Indebtedness permitted by Section 7.03 and (ii) no Disqualified Equity Interests (the “Refinancing”).
(d) The Active Nutrition Transaction shall have been, or shall be, substantially concurrently with the initial funding of the Term B Facility, consummated substantially in accordance with the Registration Statement.
(e) The Administrative Agent shall have received at least three most recently-ended Fiscal Years ending more than 90 days Business Days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, writing at least five (5) days seven Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under that the Administrative Agent, on behalf of itself or any other Lender, reasonably determines is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAct and the Beneficial Ownership Regulation.
(xvf) For The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Real PropertyAdverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(g) There has been no change, occurrence or development since September 30, 2018 that could reasonably be expected to have a Material Adverse Effect.
(Ah) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing.
(i) The Administrative Agent shall have received a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to it that all insurance required to be maintained pursuant to Section 6.06 is in full force and effect, together with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06.
(j) The Administrative Agent that shall have received (i) the Flood Insurance Requirements have been satisfiedpro forma unaudited consolidated balance sheet of BRBR and its Subsidiaries as of June 30, 2019, (ii) the pro forma unaudited consolidated statement of operations of BRBR and its Subsidiaries as of and for the twelve-month period ending on September 30, 2018, and (Ciii) favorable opinions the pro forma unaudited consolidated statement of local counsel operations of BRBR and its Subsidiaries as of and for the Loan Parties (1) in states in which the Material Real Property is locatednine-month period ending on June 30, with respect 2019, prepared after giving effect to the enforceability and perfection Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statements of operations) (collectively, the “Pro Forma Financial Statements”), it being understood that the Pro Forma Financial Statements need not be prepared in compliance with Regulation S-X of the applicable Mortgages and any related fixture filings Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)).
(k) The Administrative Agent shall have received (x) the Closing Annual Financial Statements; provided the foregoing financial statements are accompanied by consolidating information that explains in form and substance satisfactory reasonable detail the differences between the information relating to the Administrative Agent Active Nutrition Business, on the one hand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand and (2y) in states in which the Loan Parties party to Quarterly Financial Statements for each subsequent fiscal quarter (other than the applicable Mortgages are organized or formed, with respect to fourth fiscal quarter) ended at least 45 days before the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative AgentClosing Date.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (The Closing Date and the obligation of the L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit on the occasion of the Initial Extension of Credit hereunder is Extensions shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii), executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank (if applicable);
(B) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(C) deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, each in form and substance reasonably satisfactory to the Administrative Agent and covering the owned and leased real properties listed on Schedule 4.01(a)(iii)(C) (together with each other mortgage or similar document delivered pursuant to Section 6.11, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(1) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
(2) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable;
(3) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the Closing Date, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent;
(4) engineering, soils and other reports and environmental assessment reports as to the properties described in the Mortgages, from professional firms acceptable to the Administrative Agent;
(5) estoppel and consent agreements executed by each of the lessors of the leased real properties listed on Schedule 4.01(a)(iii)(C), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent;
(6) without limiting clause (8) below, evidence of the insurance required by the terms of the Mortgages;
(7) to the extent required by the Administrative Agent or any Lender, an appraisal of each of the owned properties described on Schedule 4.01(a)(iii)(C) complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(8) the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”); and
(9) such appraisals, legal opinions and other customary documents as the Administrative Agent may reasonably request with respect to such Mortgage or Mortgaged Property; and
(D) any other documents and instruments as may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(iii), enforceable against all third parties in accordance with their terms; provided that it is understood and agreed that the perfection of a security interest or a lien in the Collateral or any deliverable related to the perfection of security interests or liens in the Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, possession of the certificated securities (if any) evidencing the Guarantors’ equity and the security agreement giving rise to the security interest, the making of appropriate intellectual property filings or the execution and filing of certain mortgages and related documents with respect to the ▇▇▇▇▇▇▇ Facility (the “Required Closing Date Collateral”) shall not constitute a condition precedent to the closing of the Facilities, the Closing Date or the obligation of the L/C Issuer and each Lender to make the initial Credit Extensions to the extent that, after using its commercially reasonable efforts to do so, the Borrower is unable to perfect such security interest(s) or provide such deliverable prior to such date.
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) Fenwick & West LLP, counsel to the Loan Parties, and (B) local or other counsel in each jurisdiction in which any Loan Party may be organized or own any real property that is material in the judgment of the Administrative Agent, in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.;
(vi) A a certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiaries, Subsidiaries (taken as a whole) on a consolidated basis (the Closing Date after giving effect to the Transactions)Transaction, from its the Chief Financial Officer or other financial officer.of the Borrower;
(vii) a certificate attesting to the compliance with clauses (c), (d), (h), (i), (j) and (l) of this Section 4.01 on the Closing Date from a Responsible Officer of the Borrower;
(viii) a Committed Loan Notice pursuant to Section 2.02;
(ix) Copies copies of (i) at least five (5) days prior a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing DateLoan Parties; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.and
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇fully executed and effective ▇▇▇▇▇▇ & Credit Facility substantially in the form of Exhibit H (as the same may be modified in accordance with the terms thereof and of the ▇▇▇▇▇▇▇▇▇ Master Assignment and Assumption, LLP, counsel but subject to the Loan Partieslimitations otherwise set forth herein).
(b) All fees and expenses required to be paid hereunder and under the Fee Letters and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in substantially full in cash.
(c) Prior to the form of Exhibit D-1 heretoinitial Credit Extension on the Closing Date, the Contribution and the Equity Distribution shall have been consummated, and addressing such the Acquisition shall be consummated simultaneously or substantially concurrently with the initial Credit Extension on the Closing Date in accordance with the Acquisition Agreement and the Separation Agreement, without giving effect to any waiver or other matters as modification thereof or consent thereunder that is materially adverse to the interests of the Lenders may reasonably request and is not approved by the Arrangers (including it being understood and agreed that any change in the definition or calculation of the Recapitalization Amount (as defined in the Acquisition Agreement) shall be material and adverse to Delaware corporate law mattersthe Lenders). Since April 5, 2011, neither the Borrower nor the Acquired Business shall have consummated or agreed to any material acquisition or disposition without the prior consent of the Arrangers.
(d) The Refinancing shall have been consummated (or substantially simultaneously or concurrently with initial Credit Extensions on the Closing Date shall be consummated). After giving effect to consummation of the Transaction on the Closing Date, the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (Bi) the Loans and L/C Obligations, (ii) borrowings under the Senior Notes (if any) and/or the Bridge Facility (if any) in an aggregate principal amount not to exceed $300,000,000, the proceeds of which shall have been applied to consummate the Acquisition, (iii) borrowings under the ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto ▇ Credit Facility and addressing such other matters as the Lenders may reasonably request(iv) Indebtedness permitted by Section 7.03(b).
(xiie) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt Annual Financial Statements and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such DebtQuarterly Financial Statements.
(xivf) The Lenders Administrative Agent shall have received, received the Pro Forma Financial Statements.
(g) The Administrative Agent shall have received on or prior to the Closing Date all documentation and other information reasonably requested in writing by them at least five (5) business days prior to the Closing Date, all documentation Date in order to allow the Administrative Agent and other information required by bank regulatory authorities under the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xvh) For All approvals, consents, exemptions, authorizations, or other actions by, or notices to, or filings with, any Governmental Authority or any other Person necessary or required for the consummation of the Transaction have been received and all applicable waiting periods in connection with the Transaction (including under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended) have expired without any action having been taken by any Governmental Authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries or that could seek or threaten any of the foregoing, and no Law or regulation shall be applicable that has such effect.
(i) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Borrower and each Material Real PropertyLoan Party has complied with the terms of the Fee Letters.
(j) The representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01, 5.02, 5.03, 5.04, 5.05(a) and (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(ib), 5.14, 5.16 (Bsolely as it relates to the Act), 5.19 and 5.20 and the representations made by or with respect to the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders (but only to the extent that the Borrower or its Affiliates has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement) shall be true and correct.
(k) The Administrative Agent shall have received updated Schedules 1.01B, 4.01(a)(iii), 4.01(a)(iii)(C), 5.08(b), 5.08(c), 5.08(d)(i), 5.08(d)(ii), 5.08(e), 5.13(a), 5.13(b) and 7.03 to this Agreement (if such Material Real Property is a Special Flood Hazard Property, evidence any) to replace the corresponding Schedules attached hereto as of the Effective Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Flood Insurance Requirements have been satisfied, Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Effective Date in a manner that is material and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect adverse to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance Lenders or (ii) are otherwise satisfactory to the Administrative Agent Required Lenders (and any references to any such Schedules in this Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 4.01(k)).
(2l) in states in which the Loan Parties party There has been no change, occurrence or development (i) since December 31, 2010 that could reasonably be expected to the applicable Mortgages are organized have a Snacks Business MAE or formed(ii) since January 31, with respect 2011 that could reasonably be expected to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agenthave an Acquiror MAE.
Appears in 1 contract
Sources: Credit Agreement (Diamond Foods Inc)
Conditions Precedent to the Closing Date. This The closing of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such the following conditions precedent before or concurrently with the Closing Date(which, in all cases, shall be in form and substance reasonably acceptable to Lender):
(a) The Administrative Agent shall have received on or before the Closing Date Lender’s receipt of the following, each dated such day of which shall be originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified), each properly executed by an Authorized Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.Agreement sufficient in number for distribution to the Lender and the Borrower;
(ii) The Notes payable to a promissory note executed by the order Borrower in favor of the Lenders to Lender if so requested by Lender (the extent requested in accordance with Section 2.16(a“Term Note”).;
(iii) The Security Agreementsuch certificates of resolutions or other action, together with evidence that all incumbency certificates and/or other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies certificates of Authorized Officers of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents Borrower as Lender may require evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness authority of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred Borrower to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign enter into this Agreement and the other documents Borrower Documents and (B) the identity, authority and capacity of each Authorized Officer thereof authorized to be delivered hereunder.act as an Authorized Officer in connection with this Agreement and the other Borrower Documents;
(viiiiv) Certificatescopies of Borrower’s Organization Documents and such other documents and certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that Borrower is validly existing, in substantially good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the form conduct of Exhibit I attesting its business requires such qualification, except to the Solvency extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of King & Spalding LLP, counsel to the Borrower, addressed to the Lender, as to such matters concerning the Borrower and the Borrower Documents as the Lender may reasonably request;
(vi) a favorable opinion of ▇▇▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ LLP, counsel to Office Max Incorporated, addressed to the Loan PartiesLender, in substantially as to such matters concerning the form of Exhibit D-1 hereto, and addressing such other matters Borrower Documents as the Lenders Lender may reasonably request request;
(including vii) a certificate signed by an Authorized Officer of the Borrower certifying (A) that the conditions specified in this Section 2.02 have been satisfied, (B) that there has been no event or circumstance since the filing of Office Depot, Inc.’s Form 10-Q with the Securities and Exchange Commission on August 7, 2019 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Borrower as of the Closing Date after giving effect to Delaware corporate law matters)the transactions contemplated hereby, and (BD) ▇▇▇▇▇▇▇▇either that (1) no consents, Loop & ▇▇▇▇▇▇▇▇licenses or approvals are required in connection with the execution, LLPdelivery and performance by Borrower and the validity against Borrower of the Borrower Documents, Michigan counsel or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(viii) evidence that all insurance required to be maintained pursuant to the Loan PartiesBorrower Documents has been obtained and is in effect;
(ix) the Security Agreement, duly executed by the Borrower;
(x) the Fee Letter, duly executed by the Borrower;
(xi) results of searches or other evidence reasonably satisfactory to the Lender (in substantially each case dated as of a date reasonably satisfactory to the form Lender) indicating the absence of Exhibit D-2 hereto Liens on the assets of the Borrower, except for Permitted Liens and addressing Liens for which termination statements and releases, reasonably satisfactory to the Lender, are being tendered concurrently with such extension of credit or other matters as arrangements reasonably satisfactory to the Lenders may reasonably request.Lender for the delivery of such termination statements and releases have been made;
(xii) Since December 31all documents and instruments, 2015including Uniform Commercial Code financing statements, there required by law or reasonably requested by the Lender to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Borrower Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Lender, and
(xiii) such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require.
(b) There shall not be pending any litigation or other proceeding against the Borrower.
(c) There shall not have occurred a Material Adverse Effectany default of any Transaction Documents.
(Ad) The consummation of the transactions contemplated hereby shall not violate any applicable law or any Organization Document.
(e) All costs, fees and expenses (includingrequired to be paid or reimbursed to the Lender on or before the Closing Date, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice to the extent invoiced at least one two (12) day Business Days prior to the Closing DateDate (or such later date as the Borrower may reasonably agree) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash full.
(f) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Lender to the extent due and payable and invoiced at least two (B2) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered Business Days prior to the Administrative Agent copies of all documents Closing Date (or instruments evidencing or necessary such later date as the Borrower may reasonably agree), plus, to release all Liens on the Collateral securing extent such Debt.
(xiv) The Lenders shall have received, invoice is provided at least five two (52) days Business Days prior to the Closing Date, such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Effective Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Lender).
(g) The Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationlimitation the US Patriot Act, in each case, the Patriot Actresults of which are satisfactory to the Lender.
(xvh) For each Material Real PropertyThe representations and warranties of Borrower contained in this Agreement or in any other Borrower Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the Closing Date, except (Ai) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent extent that the Flood Insurance Requirements have been satisfiedsuch representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and (C) favorable opinions of local counsel for the Loan Parties (1ii) in states the case of any representation and warranty qualified by materiality, they shall be true and correct in which all respects.
(i) No Default or Event of Default shall exist, or would result from making the Material Real Property is located, with respect to Term Loan or from the enforceability and perfection application of the applicable Mortgages and any related fixture filings in form and substance satisfactory proceeds thereof.
(j) No event or circumstance which could reasonably be expected to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized result, either individually or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgagesaggregate, in form a Material Adverse Effect has occurred since the filing of Office Depot, Inc.’s Form 10-Q with the Securities and substance satisfactory to the Administrative AgentExchange Commission on August 7, 2019.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions action that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ the Borrower and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 20152012.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I L attesting to the Solvency of ▇▇▇▇ the Borrower and its Restricted Subsidiarieseach Guarantor, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ the Borrower and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ the Borrower and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ the Borrower dated May 529, 20162013.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 20152012, there shall not have occurred a Material Adverse Effect.
(Axiii) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ the Borrower has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Engagement Letter, the Administrative Agent Fee Letter and the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debtpayable.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder The Closing is subject to the satisfaction of such the following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Closing shall occur on or before July 31, 2005.
(b) The Agent shall have received on or before the Closing Date the following, each dated such day the Closing Date (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderPurchaser:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to Purchasers and copies of the extent requested Warrants countersigned by the Warrant Agent (as defined in accordance with Section 2.16(athe Warrant Agreement).
(iiiii) The A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), the “Security Agreement”), duly executed by each Obligor, together with evidence that with:
(A) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all other actions jurisdictions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the third priority liens and security interests created under the Security Agreement, covering the Collateral Documents described in the Security Agreement,
(B) completed requests for information, dated on or before the Closing Date, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the required jurisdictions referred to in clause (B) above that name any Obligor as debtor, together with copies of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) copies of the Assigned Agreements referred to in the Security Agreement, and
(E) evidence that all other action that the Agent may deem reasonably necessary or desirable in order to perfect and protect the third priority thereof liens and security interests created under the Security Agreement has been takentaken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements, landlords’, mortgagees’ and bailees’ waiver and consent agreements and account control and cash management agreements in form and substance satisfactory to the Agent).
(iii) The Intercreditor and Subordination Agreements in substantially the form of Exhibit E hereto, duly executed by each of the parties thereto.
(iv) Certified copies of the resolutions of the boards Board of directors Directors of each of ▇▇▇▇ Obligor approving the Transactions and each Guarantor approving the execution and delivery of this Agreement and each other Loan Purchase Document to which it is, is or is intended to be a party, and of all documents evidencing other necessary constitutive corporate action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan DocumentPurchase Document to which it is or is to be a party.
(v) A copy of the charter or other constitutive document a certificate of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organizationof each Obligor, dated reasonably near the date of the Closing Date, certifying (A) as the case may be, thereof as being to a true and correct copy thereofof the charter of such Obligor and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Obligor’s charter on file in such Secretary’s office, (2) to the extent that the Secretary of State of the applicable jurisdiction of incorporation provides such a certification, such Obligor has paid all franchise taxes to the date of such certificate and (C) such Obligor is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(vi) A copy of a certificate of the Secretary of State in each jurisdiction in which each Obligor is qualified to do business, dated reasonably near the date of the Closing Date, stating that such Obligor is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate except where the failure to be so qualified and in good standing does not have a Material Adverse Effect.
(vii) A certificate of each Loan Party Obligor, signed on behalf of such Loan Party Obligor by its President or a Responsible OfficerVice President and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; amendments to the charter of such Obligor since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(vi), (B) the accuracy a true and completeness correct copy of the bylaws (or other applicable organizational document) of such Loan Party Obligor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv3.01(b)(iv) were adopted and on the Closing Date, (C) the due incorporation and good standing or valid existence of such Obligor as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, dissolution or liquidation or other termination of the existence of such Loan Party; Obligor, (D) the accuracy in all material respects truth of the representations and warranties made by such Loan Party contained in the Loan Purchase Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefromentering into this Agreement, that would constitute constitutes a Default; Default and (F) the absence of any event occurring and continuing that constitutes a Material Adverse Effect since December 31, 2015Default (as defined in the Third Amended ITCD Credit Agreement) under the Third Amended ITCD Credit Agreement or a statement as to such Default and a reasonably detailed description thereof.
(viiviii) A certificate of the Secretary or an Assistant Secretary of each Loan Party Obligor certifying the names and true signatures of the officers of such Loan Party Obligor authorized to sign this Agreement each Purchase Document to which it is or is to be a party and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ hereunder and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officerthereunder.
(ix) Copies Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations and evidence of directors and officers’ liability insurance naming the individuals of the Agent who are elected to the board of directors of the Parent as additional insureds and loss payees with such responsible and reputable insurance companies or associations.
(ix) at least five Favorable opinions of counsel for the Obligors in form and substance reasonably satisfactory to the Agent, in the form of Exhibit F hereto and as to such other matters as any Purchaser through the Agent may reasonably request.
(5xi) Such other certificates and documents as the Agent may reasonably request.
(xii) (A) American Land Title Association Extended Coverage mortgagee title insurance policies or unconditional commitments therefor (the “Closing Date Mortgage Policies”) issued by the Title Company with respect each of the real property assets listed in Schedule 4.01(w) that shall be subject to a Closing Date Mortgage (each, a “Closing Date Mortgaged Property” and, collectively, the “Closing Date Mortgaged Properties”), in amounts not less than the respective amounts designated therein with respect to any particular Closing Date Mortgaged Property, insuring fee simple title to, or a valid leasehold interest in, each such Closing Date Mortgaged Property vested in such Obligor and assuring the Collateral Agent that the applicable Closing Date Mortgages create valid and enforceable third priority mortgage Liens on the respective Closing Date Mortgaged Properties encumbered thereby which Closing Date Mortgage Policies (1) shall include an endorsement for mechanics’ liens and for any other matters reasonably requested by the Collateral Agent and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; and (B) evidence satisfactory to the Collateral Agent that such Obligor has (1) delivered to the Title Company all certificates and affidavits required by the Title Company in connection with the issuance of the Closing Date Mortgage Policies and (2) paid to the Title Company all expenses and premiums of the Title Company in connection with the issuance of the Closing Date Mortgage Policies and to the appropriate governmental authorities all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Closing Date Mortgages in the appropriate real estate records.
(xiii) With respect to each Closing Date Mortgaged Property, a title report issued by the Title Company with respect thereto, dated not more than 30 days prior to the Closing DateDate and satisfactory in form and substance to the Collateral Agent.
(xiv) No Event of Default or event that, audited financial statements with notice and/or the passage of ▇▇▇▇ time, could constitute, an Event of Default, shall have occurred.
(xv) The Obligors shall have entered into the Mortgages (the “Closing Date Mortgages”), in form and substance reasonably acceptable to the Collateral Agent, as the Collateral Agent may deem necessary or desirable in order to ensure the grant of a security interest in the real property Collateral covered thereby in order to secure the full amount of the Obligations.
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Obligor or any of its Subsidiaries for each pending or threatened before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”).
(d) All governmental and third party consents and approvals set forth on Part I of Schedule 4.01(d) in connection with the Transactions shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Purchasers) and shall remain in effect (other than any consents and approvals the absence of which, either individually or in the aggregate, would not have a Material Adverse Effect); all applicable waiting periods in connection with the Transactions shall have expired without any action being taken by any competent authority (other than any action which either individually or in the aggregate with all such actions would not reasonably be expected to have a Material Adverse Effect), and no law or regulation shall be applicable in the reasonable judgment of the three most recentlyPurchasers in each case that restrains, prevents or imposes materially adverse conditions upon the Transactions or the rights of the Obligors or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) All Pre-ended Fiscal Years ending more than 90 days prior Closing Date Information shall be true, correct and complete in all material aspects as of the dates specified therein and no additional information shall have come to the Closing Date; attention of the Obligors that could reasonably be expected to have a Material Adverse Effect.
(f) The Issuer shall have paid (or made provision therefor in a manner reasonably satisfactory to the Agent) (i) all accrued fees and out-of-pocket expenses of the Agents and (ii) customary unaudited pro forma the fees set forth in Section 2.04 (including the accrued reasonable and documented fees and expenses of legal counsel and financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactionsadvisors, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5including Milbank, 2016.
(x) To the extent applicableTweed, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, ▇ LLP and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇▇ Berlin LLP).
(g) The Purchasers shall be reasonably satisfied that (i) the Parent and its Subsidiaries shall be able to meet their respective obligations under all employee and retiree welfare plans, Loop & (ii) the employee benefit plans of the Parent and its ERISA Affiliates are, in all material respects, funded in accordance with the minimum statutory requirements, (iii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan and (iv) no termination of, or withdrawal from, any such employee benefit plan has occurred or is contemplated that could reasonably be expected to result in a material liability.
(h) That certain Third Amended and Restated Credit Agreement, dated as of March 29, 2005, by and among the Parent, the Issuer, the Subsidiary Guarantors thereunder, the lenders from time to time party thereto and ▇▇▇▇▇▇▇▇▇ Fargo Bank, LLPN.A., Michigan counsel to the Loan Partiesas administrative agent and collateral agent, in substantially the form of Exhibit D-2 hereto shall have been extinguished and addressing such other matters as the Lenders may reasonably requestall security interests released.
(xiii) Since December 31The Second Lien Lenders shall have approved this Agreement which approval shall be in form and substance reasonably acceptable to the Purchasers.
(j) The Amended Second Lien Credit Agreement shall have been amended to the reasonable satisfaction of the Agent to permit the issuance of the Notes hereunder and to incorporate other changes related to the transactions contemplated hereby.
(k) The First Lien Documents shall have been executed and delivered in form and substance reasonably acceptable to the Note Purchasers (as defined thereunder), 2015and the First Lien Lenders shall have advanced to the Obligors an aggregate principal amount of not less than $209,000,000 pursuant to the First Lien Documents.
(l) The obligations under the Original Third Lien Credit Agreement shall have been exchanged for Notes pursuant to the Exchange Agreement and no amount of Notes greater than the sum of (x) $50,000,000 plus (y) the aggregate amount of capitalized PIK interest on the Existing Third Lien Notes through the Closing Date, there shall be outstanding immediately after the Closing.
(m) The parties shall have executed and delivered the Warrants, in form and substance reasonably acceptable to the New Purchasers and registered in such names as shall be satisfactory to the New Purchasers, and the issuance of such Warrants shall not have occurred a Material Adverse Effecttriggered any preemptive rights of holders of the Obligors’ outstanding securities, or such rights shall have been waived to the satisfaction of the New Purchasers.
(An) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative The Agent shall have received evidence reasonably satisfactory to it the unaudited Consolidated balance sheet of the repayment of all Debt under the Existing Credit AgreementObligors as at March 31, at which time all commitments2005, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned Consolidated statement of income and discharged in full (other than obligations which by their terms survive termination Consolidated statement of cash flows of the Obligors for the month then ended and the Existing Letters Projections certified by the Chief Executive Officer and Chief Financial Officer of Credit the Parent as having been prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such information.
(o) There shall have been no Material Adverse Change since December 31, 2004, it being understood that the Defaults or Events of Default set forth on Schedule VI hereto shall not be deemed to be issued hereunderhave a Material Adverse Change.
(p) and ▇▇▇▇ The Obligors shall have, substantially concurrently with the Initial Extension of Credit hereunder, have delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgagesopinions, in form and substance satisfactory to the Administrative Agent, of counsel to those Subsidiary Guarantors organized in Alabama, North Carolina and Virginia.
(q) The purchase of the Securities by the Purchasers shall (i) be permitted by the laws and regulations of each jurisdiction to which the Purchasers are subject, (ii) not violate any Applicable Law (including, without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System), (iii) not require registration or qualification of the Notes under any Applicable Law (including, without limitation, any applicable federal or state securities laws), and (iv) not subject the New Purchasers to any tax, penalty or liability under or pursuant to any Applicable Law which was not in effect on the date hereof. If requested by the New Purchasers or the Agent, the New Purchasers or the Agent shall have received an officer’s certificate certifying as to such matters of fact as the New Purchasers or the Agent may reasonably specify to enable the New Purchasers or the Agent to determine whether such purchase is permitted.
(r) The Agent shall have received an officer’s certificate duly executed by the Chief Financial Officer of the Issuer in substantially the form of Exhibit I hereto (a “Solvency Certificate”) (i) to the effect that the Parent and its Subsidiaries shall be Solvent upon the consummation of the transactions contemplated herein and in the other Purchase Documents; and (ii) containing such other statements with respect to the solvency of the Parent and its Subsidiaries and matters related thereto as the Agent or the Purchasers shall request.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and The Closing Date, the obligation of each Lender to make an Advance or the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the Issuing Bank L/C Issuer to issue a Letter Letters of Credit on the occasion of the Initial Extension of Credit hereunder is Credit, shall, in each case, be subject to Section 11.25 and the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (unless otherwise specifiedit being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (except q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the NotesCommitments shall be deemed to have been borrowed on the Closing Date; and
(x) in sufficient copies for a counterpart of each Lender:
of (i) Duly the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed counterparts by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of this AgreementHoldings and SpinCo.
(iib) The Notes payable All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the order Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the Lenders existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the extent Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with Section 2.16(a).
(iii) The Security the Merger Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect Separation Agreement and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it isin the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or is intended to be a party, and waiver of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy any term of the charter Merger Agreement or the Separation Agreement (other constitutive document of each Loan Party and each amendment theretothan any such amendment, certified (as of a date reasonably acceptable modification or waiver that is not materially adverse to the Administrative Agent) by the Secretary of State interests of the jurisdiction of its incorporation Lenders) shall be made or organizationgranted, as the case may be, thereof as without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being a true and correct copy thereof.
understood that any change greater than 10.0% (viincluding any price decrease greater than 10.0%) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (original consideration payable pursuant to the statements made Merger Agreement in which certificate shall be true on and effect as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder hereof will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered materially adverse to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection interests of the applicable Mortgages Lenders and any related fixture filings in form and substance satisfactory to will require the Administrative Agent and (2) in states in which prior written consent of the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.Arrangers); and
Appears in 1 contract
Sources: Credit Agreement (Acco Brands Corp)
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date (the "Closing Date") on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit Advances hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent and FFH shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders FFH (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this AgreementAgreement from each Credit Party.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a)2.09.
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors or shareholder(s) of each of ▇▇▇▇ the Borrowers and each Primary Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Reorganization Plan, this Agreement, the other Transactions Agreement and each other Loan Document.
(viv) A copy of the charter or other constitutive document of each Loan Party Borrower and each Primary Guarantor and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative AgentFFH) by the Secretary of State of the jurisdiction (or other Governmental Authority, as applicable) of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(viv) A certificate of each Loan Party Borrower and each Primary Guarantor signed on behalf of such Loan Credit Party by a Responsible OfficerOfficer or its secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Credit Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Credit Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Credit Party; and (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) Advance or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(viivi) A certificate of the Secretary or an Assistant Secretary or other appropriate officer or manager of each Loan Party Borrower and each Primary Guarantor certifying the names and true signatures of the officers of such Loan Credit Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viiivii) CertificatesThe Administrative Agent and FFH shall have received (A) a weekly cash bankruptcy budget for the 13-week period from the commencement of the Cases, prepared by the Credit Parties and in substantially the form of Exhibit I attesting and substance acceptable to the Solvency FFH in its sole discretion (the "Interim DIP Budget") and (B) draft 2008 audited consolidated financial statements of ▇▇▇▇ Parent and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ixviii) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a A Notice of Borrowing for any the Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, made on the Closing Date.
(xib) A favorable opinion The Administrative Agent and the Lenders shall have received (i) satisfactory evidence of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, entry of an order of the U.S. Bankruptcy Court substantially in substantially the form of Exhibit D-1 heretoC (the "Interim Order") approving, among other things, the Loan Documents, granting the Superpriority Claim status and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law mattersLiens described in Section 4.01(m), providing for an intercreditor arrangement with the secured parties under the Existing Facilities and including granting of the adequate protection described therein and (Bii) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to satisfactory evidence of the Loan Parties, issuance of the Initial CCAA Order substantially in substantially the form of Exhibit D-2 hereto D.
(c) The Credit Parties shall be in compliance with the orders described in clause (b) above, which shall be in full force and addressing such other matters as effect and shall not have been vacated, reversed, modified, amended or stayed without the prior written consent of the Required Lenders may reasonably request(which consent shall not be unreasonably withheld).
(xiid) Since December 31All of the "first day orders" (including the Interim Order and the Initial CCAA Order) entered by the Bankruptcy Courts at the time of the commencement of the Cases, 2015related orders, there and motions and other documents to be filed with and submitted to the U.S. Bankruptcy Court in connection with this Agreement shall not have occurred a Material Adverse Effectbe reasonably satisfactory in form and substance to FFH.
(Ae) All costsNo examiner with increased powers to operate the Credit Parties' material businesses or trustee, receiver, interim receiver or receiver and manager shall have been appointed with respect to any or all of the Credit Parties or their respective properties.
(f) The Borrowers shall have paid all fees of the Administrative Agent and the Lenders and all expenses of the Administrative Agent and the Lenders (including the accrued fees and expenses (including, without limitation, legal fees of counsel to the Administrative Agent and expenses for which ▇▇▇▇ has received an invoice at least one (1each Initial Lender) day due and payable on or prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly ▇▇▇▇ executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss▇▇▇▇▇, Rifkind▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder The Closing is subject to the satisfaction of such the following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Closing shall occur on or before July 31, 2005.
(b) The Agent shall have received on or before the Closing Date the following, each dated such day the Closing Date (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderNote Purchaser:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a)Note Purchasers.
(iiiii) The A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), the “Security Agreement”), duly executed by each Obligor, together with evidence that with:
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all other actions jurisdictions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral Documents described in the Security Agreement,
(C) completed requests for information, dated on or before the Closing Date, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the required jurisdictions referred to in clause (B) above that name any Obligor as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) copies of the Assigned Agreements referred to in the Security Agreement, and
(F) evidence that all other action that the Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority thereof liens and security interests created under the Security Agreement has been takentaken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements, landlords’, mortgagees’ and bailees’ waiver and consent agreements and account control and cash management agreements in form and substance satisfactory to the Agent).
(iii) The Intercreditor and Subordination Agreements in substantially the form of Exhibit E hereto, duly executed by each of the parties thereto.
(iv) Certified copies of the resolutions of the boards Board of directors Directors of each of ▇▇▇▇ Obligor approving the Transactions and each Guarantor approving the execution and delivery of this Agreement and each other Loan Note Purchase Document to which it is, is or is intended to be a party, and of all documents evidencing other necessary constitutive corporate action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan DocumentNote Purchase Document to which it is or is to be a party.
(v) A copy of the charter or other constitutive document a certificate of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organizationof each Obligor, dated reasonably near the date of the Closing Date, certifying (A) as the case may be, thereof as being to a true and correct copy thereofof the charter of such Obligor and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Obligor’s charter on file in such Secretary’s office, (2) to the extent that the Secretary of State of the applicable jurisdiction of incorporation provides such a certification, such Obligor has paid all franchise taxes to the date of such certificate and (C) such Obligor is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(vi) A copy of a certificate of the Secretary of State in each jurisdiction in which each Obligor is qualified to do business, dated reasonably near the date of the Closing Date, stating that such Obligor is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate except where the failure to be so qualified and in good standing does not have a Material Adverse Effect.
(vii) A certificate of each Loan Party Obligor, signed on behalf of such Loan Party Obligor by its President or a Responsible OfficerVice President and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; amendments to the charter of such Obligor since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(vi), (B) the accuracy a true and completeness correct copy of the bylaws (or other applicable organizational document) of such Loan Party Obligor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv3.01(b)(iv) were adopted and on the Closing Date, (C) the due incorporation and good standing or valid existence of such Obligor as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, dissolution or liquidation or other termination of the existence of such Loan Party; Obligor, (D) the accuracy in all material respects truth of the representations and warranties made by such Loan Party contained in the Loan Note Purchase Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefromentering into this Agreement, that would constitute constitutes a Default; Default and (F) the absence of any event occurring and continuing that constitutes a Material Adverse Effect since December 31, 2015Default (as defined in the Third Amended ITCD Credit Agreement) under the Third Amended ITCD Credit Agreement or a statement as to such Default and a reasonably detailed description thereof.
(viiviii) A certificate of the Secretary or an Assistant Secretary of each Loan Party Obligor certifying the names and true signatures of the officers of such Loan Party Obligor authorized to sign this Agreement each Note Purchase Document to which it is or is to be a party and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ hereunder and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officerthereunder.
(ix) Copies Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations and evidence of directors and officers’ liability insurance naming the individuals of the Agent who are elected to the board of directors of the Parent as additional insureds and loss payees with such responsible and reputable insurance companies or associations.
(ix) at least five Favorable opinions of counsel for the Obligors in form and substance reasonably satisfactory to the Agent, in the form of Exhibit F hereto and as to such other matters as any Note Purchaser through the Agent may reasonably request.
(5xi) Such other certificates and documents as the Agent may reasonably request.
(xii) (A) American Land Title Association Extended Coverage mortgagee title insurance policies or unconditional commitments therefor (the “Closing Date Mortgage Policies”) issued by the Title Company with respect each of the real property assets listed in Schedule 4.01(w) that shall be subject to a Closing Date Mortgage (each, a “Closing Date Mortgaged Property” and, collectively, the “Closing Date Mortgaged Properties”), in amounts not less than the respective amounts designated therein with respect to any particular Closing Date Mortgaged Property, insuring fee simple title to, or a valid leasehold interest in, each such Closing Date Mortgaged Property vested in such Obligor and assuring the Collateral Agent that the applicable Closing Date Mortgages create valid and enforceable first priority mortgage Liens on the respective Closing Date Mortgaged Properties encumbered thereby which Closing Date Mortgage Policies (1) shall include an endorsement for mechanics’ liens and for any other matters reasonably requested by the Collateral Agent and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; and (B) evidence satisfactory to the Collateral Agent that such Obligor has (1) delivered to the Title Company all certificates and affidavits required by the Title Company in connection with the issuance of the Closing Date Mortgage Policies and (2) paid to the Title Company all expenses and premiums of the Title Company in connection with the issuance of the Closing Date Mortgage Policies and to the appropriate governmental authorities all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Closing Date Mortgages in the appropriate real estate records.
(xiii) With respect to each Closing Date Mortgaged Property, a title report issued by the Title Company with respect thereto, dated not more than 30 days prior to the Closing DateDate and satisfactory in form and substance to the Collateral Agent.
(xiv) No Event of Default or event that, audited financial statements with notice and/or the passage of ▇▇▇▇ time, could constitute, an Event of Default, shall have occurred.
(xv) the Obligors shall have entered into the Mortgages (the “Closing Date Mortgages”), in form and substance reasonably acceptable to the Collateral Agent, as the Collateral Agent may deem necessary or desirable in order to ensure the grant of a security interest in the real property Collateral covered thereby in order to secure the full amount of the Obligations.
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Obligor or any of its Subsidiaries for each pending or threatened before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”).
(d) All governmental and third party consents and approvals set forth on Part I of Schedule 4.01(d) in connection with the Transactions shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Note Purchasers) and shall remain in effect (other than any consents and approvals the absence of which, either individually or in the aggregate, would not have a Material Adverse Effect); all applicable waiting periods in connection with the Transactions shall have expired without any action being taken by any competent authority (other than any action which either individually or in the aggregate with all such actions would not reasonably be expected to have a Material Adverse Effect), and no law or regulation shall be applicable in the reasonable judgment of the three most recentlyNote Purchasers in each case that restrains, prevents or imposes materially adverse conditions upon the Transactions or the rights of the Obligors or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) All Pre-ended Fiscal Years ending more than 90 days prior Closing Date Information shall be true, correct and complete in all material aspects as of the dates specified therein and no additional information shall have come to the Closing Date; attention of the Obligors that could reasonably be expected to have a Material Adverse Effect.
(f) The Issuer shall have paid (or made provision therefor in a manner reasonably satisfactory to the Agent)
(i) all accrued fees and out-of-pocket expenses of the Agents and (ii) customary unaudited pro forma the fees set forth in Section 2.05 (including the accrued reasonable and documented fees and expenses of legal counsel and financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactionsadvisors, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5including Milbank, 2016.
(x) To the extent applicableTweed, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, ▇ LLP and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, ▇ Berlin LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request).
(xiig) Since December 31The Note Purchasers shall be reasonably satisfied that (i) the Parent and its Subsidiaries shall be able to meet their respective obligations under all employee and retiree welfare plans, 2015(ii) the employee benefit plans of the Parent and its ERISA Affiliates are, there in all material respects, funded in accordance with the minimum statutory requirements, (iii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan and (iv) no termination of, or withdrawal from, any such employee benefit plan has occurred or is contemplated that could reasonably be expected to result in a material liability.
(h) The Third Amended ITCD Credit Agreement shall have been extinguished and all security interests released.
(i) The Second Lien Lenders shall have approved this Agreement which approval shall be in form and substance reasonably acceptable to the Note Purchasers.
(j) The Amended Second Lien Credit Agreement shall have been amended to the reasonable satisfaction of the Agent to permit the issuance of the Notes hereunder and to incorporate other changes related to the transactions contemplated hereby.
(k) The Original Third Lien Credit Agreement shall have been amended and restated and the relevant parties shall have executed and delivered the New Third Lien Documents, in form and substance reasonably acceptable to the Note Purchasers, and the New Third Lien Lenders shall have advanced to the Obligors an aggregate principal amount of not less than $30,000,000 pursuant to the New Third Lien Documents.
(l) The obligations under the Original Third Lien Credit Agreement shall have been exchanged for New Third Lien Notes pursuant to the Exchange Agreement and no amount of New Third Lien Notes greater than the sum of (x) $50,000,000 plus (y) the aggregate amount of capitalized PIK interest on the Existing Third Lien Notes through the Closing Date, shall be outstanding immediately after the Closing.
(m) The parties shall have executed and delivered the Warrants, in form and substance reasonably acceptable to the Note Purchasers and registered in such names as shall be satisfactory to the New Third Lien Lenders, and the issuance of such Warrants shall not have occurred a Material Adverse Effecttriggered any preemptive rights of holders of the Obligors’ outstanding securities, or such rights shall have been waived to the satisfaction of the Note Purchasers.
(An) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative The Agent shall have received evidence reasonably satisfactory to it the unaudited Consolidated balance sheet of the repayment of all Debt under the Existing Credit AgreementObligors as at March 31, at which time all commitments2005, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned Consolidated statement of income and discharged in full (other than obligations which by their terms survive termination Consolidated statement of cash flows of the Obligors for the month then ended and the Existing Letters Projections certified by the Chief Executive Officer and Chief Financial Officer of Credit the Parent as having been prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such information.
(o) There shall have been no Material Adverse Change since December 31, 2004, it being understood that the Defaults or Events of Default set forth on Schedule VI hereto shall not be deemed to be issued hereunderhave a Material Adverse Change.
(p) and ▇▇▇▇ The Obligors shall have, substantially concurrently with the Initial Extension of Credit hereunder, have delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgagesopinions, in form and substance satisfactory to the Administrative Agent, of counsel to those Subsidiary Guarantors organized in Alabama, North Carolina and Virginia.
(q) The purchase of Notes by the Note Purchasers shall (i) be permitted by the laws and regulations of each jurisdiction to which the Note Purchasers are subject, (ii) not violate any Applicable Law (including, without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System), (iii) not require registration or qualification of the Notes under any Applicable Law (including, without limitation, any applicable federal or state securities laws), and (iv) not subject the Note Purchasers to any tax, penalty or liability under or pursuant to any Applicable Law which was not in effect on the date hereof. If requested by the Note Purchasers or the Agent, the Note Purchasers or the Agent shall have received an officer’s certificate certifying as to such matters of fact as the Note Purchasers or the Agent may reasonably specify to enable the Note Purchasers or the Agent to determine whether such purchase is permitted.
(r) The Agent shall have received an officer’s certificate duly executed by the Chief Financial Officer of the Issuer in substantially the form of Exhibit I hereto (a “Solvency Certificate”) (i) to the effect that the Parent and its Subsidiaries shall be Solvent upon the consummation of the transactions contemplated herein and in the other Note Purchase Documents; and (ii) containing such other statements with respect to the solvency of the Parent and its Subsidiaries and matters related thereto as the Agent or the Note Purchasers shall request.
Appears in 1 contract
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation agreement of each Lender and L/C Issuer to make an Advance or of the Issuing Bank Credit Extensions requested to issue a Letter of Credit be made on the occasion of the Initial Extension of Credit hereunder Closing Date is subject to the satisfaction of such conditions precedent before of, or waiver in accordance with Section 10.01, prior to or concurrently with the making of such Credit Extensions on the Closing DateDate of the following conditions precedent (unless characterized as post-closing obligations pursuant to Section 6.17 and set forth on Schedule 6.17):
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement and each Guaranty, each of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each dated the Closing Date and each in form and substance satisfactory to the Administrative Agent and each of the Lenders;
(b) The Administrative Agent’s receipt of each of the agreements, documents, instruments and other items set forth on the closing checklist attached hereto as Schedule 4.01 (the “Closing Checklist”), each of which shall have received be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and the Arranger.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, including fees payable pursuant to Section 2.09.
(d) The Borrower shall have paid all fees, charges and disbursements of counsel to the followingAgents (directly to such counsel if requested by the Agents) to the extent invoiced prior to or on the Closing Date, each dated plus such day 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 (unless otherwise specifiedprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents), including title premiums, survey charges and recording taxes or fees.
(e) Each Loan Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Lenders (unless Administrative Agent and Arranger. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise specified) impose adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof and (except no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the Notes) in sufficient copies foregoing shall be pending, and the time for each Lender:
(i) Duly executed counterparts of this Agreementany applicable agency to take action to set aside its consent on its own motion shall have expired.
(iif) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at At least five (5) 10 days prior to the Closing DateDate (or such shorter period agreed to by the Lenders), audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitationthe Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Patriot “PATRIOT Act”).
(xvg) For Borrower shall have been assigned a corporate family rating from ▇▇▇▇▇’▇, a corporate credit rating from S&P and the Loans shall have been assigned a credit rating from each Material Real Propertyof ▇▇▇▇▇’▇ and S&P.
(h) The Arranger shall have received evidence satisfactory to the Arranger that the pricing for the initial public offering of the Equity Interest in Holdings has occurred.
(i) The Arranger shall have received a certificate of a Responsible Officer of Borrower, attaching and certifying that (A) a Mortgage attached thereto are true and Mortgage Policy delivered in accordance with Section 5.01(i)correct copies of (i) the Share Purchase Agreement, dated March 20, 2014, by and between Holdings and Samsung Electronics and (ii) the Share Purchase Agreement, dated March 20, 2014, by and between Holdings and Samsung Fine Chemicals, and (B) if no breach or default has occurred under any of such Material Real Property agreements and that each such agreement is a Special Flood Hazard Propertyin full force and effect and has not been terminated. Without limiting the generality of the provisions of the last paragraph of Section 9.03, evidence reasonably for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent that the Flood Insurance Requirements shall have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect received notice from such Lender prior to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (The Closing Date and the obligation of the L/C Issuer and each Lender to make an Advance or of the Issuing Bank to issue a Letter of initial Credit on the occasion of the Initial Extension of Credit hereunder is Extensions shall, in each case, be subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date Agent’s receipt of the following, each dated such day of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Lenderits legal counsel:
(i) Duly a Note executed counterparts by the Borrower in favor of this Agreement.each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date;
(ii) The Notes payable each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock or other transfer powers executed in blank (if applicable);
(B) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the order Administrative Agent; and
(C) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Lenders Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the extent requested Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with Section 2.16(a).their terms;
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies such certificates of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by Agent may reasonably require evidencing the Secretary of State of the jurisdiction of its incorporation or organizationidentity, as the case may be, thereof as being a true authority and correct copy thereof.
(vi) A certificate capacity of each Loan Party signed on behalf of such Loan Party by Responsible Officer thereof authorized to act as a Responsible Officer, dated the Closing Date (the statements made Officer in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign connection with this Agreement and the other documents Loan Documents to be delivered hereunder.which such Loan Party is a party;
(viiiiv) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), an opinion from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) ▇▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP▇.▇., counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), Loop & ▇▇▇▇▇▇▇▇in each case as reasonably requested by the Administrative Agent, LLPin the case of each of clauses (A) and (B), Michigan counsel in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(vi) a certificate attesting to the compliance with clauses (c), (g), (h) and (i) of this Section 4.01 on the Closing Date from a Responsible Officer of the Borrower;
(vii) if any Loans are to be made on the Closing Date, a Committed Loan Notice pursuant to Section 2.02; and
(viii) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect.
(Ab) All costs, reasonable fees and out-of-pocket expenses (including, without limitation, legal fees required to be paid and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to invoiced on or before the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties Date shall have been been, or concurrently with the closing of the Transaction shall be, paid in full in cash cash.
(c) After giving effect to consummation of the extent due Transaction on the Closing Date, the Borrower and payable its Subsidiaries shall have outstanding (i) no Indebtedness other than Indebtedness permitted by Section 7.03 and (Bii) no Disqualified Equity Interests.
(d) The Administrative Agent and the Lenders shall have received the Annual Financial Statements.
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days three Business Days prior to the Closing Date, Date all documentation and other information required reasonably requested in writing by bank regulatory authorities under them at least seven Business Days prior to the Closing Date in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(xvf) For each Material Real Property, (A) The Administrative Agent shall have received a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to the Administrative Agent it that the Flood Insurance Requirements have been satisfiedall insurance required to be maintained pursuant to Section 6.06 is in full force and effect, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, together with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to endorsements naming the Administrative Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06.
(g) The representations and warranties of the Borrower and each other Loan Party contained in Article V hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(h) There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of the Administrative Agent, singly or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(i) There has been no change, occurrence or development since September 30, 2013 that could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Conditions Precedent to the Closing Date. This The effectiveness of this Agreement shall become effective on is subject to and as conditional upon the prior fulfilment of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent the Administrative Agent and the Lenders:
12.1.1 On or prior to 4:00 p.m. (Toronto time) on the Banking Day before or concurrently with the Closing Date):
(a) The , the Administrative Agent shall have received on or before from the Closing Date Borrower, in sufficient quantities to provide one copy to each Lender and to the Administrative Agent, the following, each dated such day (unless otherwise specified), as of a date satisfactory to the Lenders and in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for Lenders:
12.1.1.1 this Agreement duly executed by the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of Obligors, the Lenders to the extent requested in accordance with Section 2.16(a).
(iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.Administrative Agent;
(iv) Certified 12.1.1.2 the Intercreditor Agreement duly executed by the Obligors, the Lenders, the Hedge Providers and the Administrative Agent;
12.1.1.3 certified copies of the resolutions of the boards of directors charter and by-laws of each Obligor and of ▇▇▇▇ all documents and each Guarantor resolutions evidencing necessary corporate action on their part approving and authorizing the execution execution, delivery and delivery performance of this Agreement and each the other Loan Document Documents to which it is, or is intended to be a party, party and of all documents evidencing any other necessary constitutive corporate action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions Loan Documents and each other Loan Document.
(v) A copy of the charter instruments, certificates or other constitutive document documents contemplated herein, and approving and authorizing the manner in which and by whom the foregoing documents are to be executed and delivered;
12.1.1.4 a certificate of status, compliance, good standing or like certificate with respect to each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) Obligor issued by the Secretary of State appropriate government officials of the jurisdiction of its incorporation or organizationamalgamation, as the case may beapplicable, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made jurisdiction in which certificate shall be true they carry on and as business if applicable;
12.1.1.5 certified copies of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceedsRequired Approvals, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute ;
12.1.1.6 a Default; and (F) the absence certificate of a Material Adverse Effect since December 31, 2015.
(vii) A certificate of the Secretary or an Assistant Secretary Responsible Officer of each Loan Party Obligor certifying the names and true signatures signature of the their officers of such Loan Party authorized to sign this Agreement and Agreement, the other Loan Documents and any other documents or certificates to be delivered hereunder.pursuant to this Agreement;
(viii) Certificates, 12.1.1.7 certificates of insurance in substantially accordance with the form requirements of Exhibit I attesting Section 13.4;
12.1.1.8 copies of any existing Phase 1 environmental assessment and environmental audits in respect of all Material Real Property owned or leased by the Obligors which have not previously been delivered to the Solvency of ▇▇▇▇ Administrative Agent;
12.1.1.9 the Guarantees and its Restricted SubsidiariesSecurity Documents duly authorized, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ executed and its Subsidiaries for delivered by each of the three most recently-ended Fiscal Years ending more than 90 days prior Obligors parties hereto to the Closing Date; extent required by the Collateral and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect Guarantee Requirement to the Transactions, in each case prepared in extent such Security Documents have not previously been delivered to the Administrative Agent;
12.1.1.10 a manner consistent with certificate of a Responsible Officer of the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.
(x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issuedBorrower certifying that, on the Closing Date., the Borrower is in compliance with the financial ratios set forth in Section 13.2.1;
12.1.1.11 certified copy of the Term Loan Agreement including all amendments thereto;
12.1.1.12 the results of Lien searches of all filings, registrations or recordings of or with respect to all the Assets (xiother than real property) A favorable of the Obligors (i) for Canadian Obligors, in each jurisdiction in which their respective Assets are located or they have an office (which Assets in such jurisdiction have a value exceeding $1,000,000), and (ii) for US Obligors, in their jurisdiction of organization, in each case, together with such other documents that the Lenders shall reasonably require evidencing, to the entire satisfaction of the Lenders, that all such Assets are free and clear of all Liens, other than Permitted Liens;
12.1.1.13 a favourable opinion of (A) Stikeman Elliott LLP, Canadian counsel to the Borrower, and ▇▇▇▇, Weiss, Rifkind, ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ LLP, United States counsel to the Loan PartiesBorrower, in substantially form and substance acceptable to the form of Exhibit D-1 heretoAdministrative Agent and the Lenders, and addressing such other matters as addressed to the Administrative Agent, the Lenders may reasonably request (including as to Delaware corporate law matters)and Lenders’ Counsel; and
12.1.1.14 a favourable report of Lenders’ Counsel, and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel addressed to the Loan PartiesAdministrative Agent and to each Lender;
12.1.2 each of the Security Documents or financing statements, notices or applications in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xii) Since December 31respect thereof, 2015, there shall not have occurred a Material Adverse Effect.
(A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid duly registered, filed and recorded against all Material Real Property of each Obligor, if any, and in full all other places and in cash all jurisdictions which the Lenders shall require, to the extent due entire satisfaction of the Lenders and payable Lenders’ Counsel and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it the Lenders and Lenders’ Counsel of such registrations, recordings or filings and that the repayment Security Interests thereunder constitute valid, effective and perfected first priority Security Interests, subject only to Permitted Liens, except to the extent delivery of all Debt under the Existing Credit Agreement, at which time all commitments, security interests Security Documents and guarantees related confirmation of title insurance in respect of such Debt and Material Real Property is due at a date following Closing;
12.1.3 receipt by the related documents thereunder will be terminated, returned and discharged Administrative Agent of all estoppel letters reasonably required by the Administrative Agent in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently accordance with the Initial Extension requirements of Credit hereunderSchedule 14.1, to the extent not previously delivered to the Administrative Agent copies Agent;
12.1.4 receipt by each Lender of all information and documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt.
(xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable such Lender to meet its obligations with respect to “know your customer” and anti-money laundering rules and regulationsrules under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and its regulations (or similar Applicable Law);
12.1.5 no event has occurred which constitutes a Material Adverse Effect since September 30, 2019; and
12.1.6 all amounts due and payable on or before the initial Advance by the Borrower pursuant to this Agreement and the other Loan Documents, including without limitationreasonable out of pocket costs, the Patriot Act.
(xv) For each Material Real Property, (A) a Mortgage work fees and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions reasonable legal fees of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and the Lenders (2) in states in which including reasonable legal fees of Lenders’ Counsel), shall have been paid or be paid out of the Loan Parties party to proceeds of the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agentinitial Advance under Facility A Credit.
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