Conditions to Closing Date. Each Lender’s respective Commitments hereunder shall become effective, on the terms and subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent: (a) The Administrative Agent shall have received all of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions): (i) executed counterparts of (A) this Agreement from the Borrower, (B) the Guaranty from each Guarantor and (C) the Security Agreement from the Borrower and each Guarantor; together with (subject to the last paragraph of this Section 4.01): (A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable, (B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and (C) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject to the last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank, (ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors is a party or is to be a party; (iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect; (iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension; (v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I; (vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent; (vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and (viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent. (b) Since (x) December 31, 2012 through the date of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effect. (c) The Borrower and each Guarantor shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree). (d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01. (e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance. (f) The Specified Purchase Agreement Representations shall be true and correct in all material respects. (g) The Specified Representations shall be true and correct in all material respects. (h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated. (i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility). (j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter). (k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing
Appears in 1 contract
Sources: Credit Agreement (Chicagoland Television News, LLC)
Conditions to Closing Date. Each Lender’s respective The obligations of the Lenders to make Loans on the Closing Date and the effectiveness of the Commitments hereunder shall become effective, on the terms and are subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedentconditions:
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower Agent and its Subsidiaries, giving effect to the Transactions):legal counsel:
(i) executed counterparts of (A) this Agreement from each of the Borrower, parties listed on the signature pages hereto;
(Bii) executed counterparts of the Guaranty from each Guarantor of the parties listed on the signature pages hereto and thereto;
(Ciii) a Note executed by the Security Agreement from Borrowers in favor of each Lender that has requested a Note at least five (5) Business Days in advance of the Borrower and Closing Date;
(iv) each Guarantor; Collateral Document set forth on Schedule 4.01(a) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (subject except as provided in such Collateral Documents);
A. certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the last paragraph of this Section 4.01):pledged debt referred to therein endorsed in blank;
(A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) B. evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to perfect satisfy the Collateral and protect the Liens created thereby Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), Collateral Agent; and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject C. evidence that all insurance required to be maintained pursuant to the last paragraph of this Section 4.01Loan Documents has been obtained and is in effect and that the Administrative Agent and Collateral Agent has been named as loss payee and additional insured under each United States insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(v) such certificates, if anycopies of Organization Documents of the Loan Parties, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as party on the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit IClosing Date;
(vi) an opinion from each of Debevoise & (A) ▇▇▇▇▇ ▇▇▇▇▇ LLP, U.S. counsel to the Loan Parties, (B) K&L Gates LLP, special North Carolina counsel to Parent and (C) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Esq., corporate counsel to the Loan Partiesof Parent, addressed to in each Lendercase, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) opinions a certificate of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory a Responsible Officer of Parent certifying as to the Administrative Agentmatters set forth in Sections 4.01(f), 4.02(a) and (b);
(viii) a certificate attesting to the Solvency of the Group on the Closing Date after giving effect to the Transaction, from the Parent’s chief financial officer or other officer with equivalent duties;
(ix) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to any Credit Extension being made on the Closing Date; and
(viiix) opinions if available in the relevant jurisdiction, good standing certificates or certificates of FCC counsel status, as applicable and bring down telegrams or facsimiles, for the each Loan Parties, in form and substance reasonably satisfactory to the Administrative AgentParty.
(b) Since All fees and expenses required to be paid hereunder or pursuant to the Fee Letters, in the case of expenses, to the extent invoiced at least three (x3) December 31, 2012 through Business Days prior to the date Closing Date shall have been paid in full in cash or will be paid on the Closing Date out of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date proceeds of the Purchase Agreement, there shall not have occurred a Target Material Adverse EffectCredit Extensions made to the Borrowers on the Closing Date.
(c) The Borrower and each Guarantor Lead Arrangers shall have provided received (i) the Annual Financial Statements, (ii) the Quarterly Financial Statements, (iii) annual projections in a form reasonably satisfactory to the Lead Arrangers and (iv) a copy of the Offering Memorandum.
(d) Prior to or substantially simultaneously with the making of the Credit Extensions to the Borrowers on the Closing Date, (i) the Refinancing shall have been consummated and (ii) the Senior Notes shall have been issued and, in each case, the Administrative Agent shall have received satisfactory evidence thereof.
(e) The Administrative Agent and the Lead Arrangers shall have received at least two (2) Business Days prior to the Closing Date all documentation and other information about the Borrowers and the Guarantors as has been reasonably requested in writing at least ten five (105) days Business Days prior to the Closing Date by the Lenders Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-money laundering rules and regulations, including without limitation the USA PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations That, since December 31, 2015, there shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall not have beenoccurred any event, condition or circumstance that has had, or substantially contemporaneously with could reasonably be expected to have, a Material Adverse Effect on the initial borrowing hereunderbusiness, shall be consummated.
(i) All fees required assets, results of operations or financial condition of Parent and its subsidiaries or on the business to be paid on conducted by them. For purposes of determining whether the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01has occurred, each Lender as of the Closing Date that has executed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from or such Lender, as the case may be, unless such Lender has notified the Administrative Agent of any disagreement prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection making of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them Credit Extensions on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
Conditions to Closing Date. Each Lender’s The obligation of each Lender to execute and deliver this Agreement, and to make its respective Commitments hereunder shall become effectivehereunder, on the terms and is subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower Company and its Subsidiaries, giving effect to the TransactionsTransaction):
(i) executed counterparts of (A) this Agreement from the Borrower, and (B) the a Guaranty from each Guarantor Holdings;
(ii) executed counterparts of an escrow agreement, in the form attached as Exhibit L hereto, dated on or prior to the Closing Date, made among Merger Sub, the Administrative Agent and the institution party thereto as escrow agent (Cthe “Escrow Agreement”);
(iii) the Security Agreement from the Borrower Agreement, duly executed by Merger Sub and each Guarantor; Holdings, together with (subject to the last paragraph of this Section 4.01):
(A) certificates representing the Pledged Interests in Merger Sub referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower against Merger Sub and the Guarantors Holdings created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,and
(BC) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including including, without limitation, receipt of duly executed payoff letters, customary lien searches and searches, UCC-3 termination statements), and;
(Civ) the Pledge Intellectual Property Security Agreement, duly executed by the Borrower Merger Sub and the GuarantorsHoldings, together with (subject to the last paragraph of this Section 4.01) certificates, if any, representing evidence that all action that the Pledged Shares referred Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to therein accompanied by undated stock powers executed in blank,perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(iiv) such customary certificates of resolutions or other action 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 and other transactions hereunderaction, incumbency certificates and/or other certificates of Responsible Officers of the Borrower Merger Sub and each Guarantor Holdings 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 each of the Borrower Merger Sub and the Guarantors Holdings is a party or is to be a party;
(iiivi) such documents and certifications (including Organization including, without limitation, Organizational Documents and, if applicable, and good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower each of Merger Sub and each Guarantor Holdings is duly organized or formed, and that each of them Merger Sub and Holdings is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where its ownership, exceptlease or operation of properties or the conduct of its business requires such qualification, other than with respect to the Borrower, except to the extent that failure to be in good standing so qualified could not reasonably be expected to have a Material Adverse Effect;; and
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vivii) an opinion of Debevoise ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan PartiesMerger Sub and Holdings, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan PartiesSecured Party, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 2009, through and including the date of the Purchase AgreementClosing Date, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target no Company Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effectoccurred.
(c) The Maximum Ticking Fee Amount shall have been funded into an escrow account, in accordance with Section 2.09(b).
(d) Holdings, the Borrower and each Guarantor the Company shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including including, without limitation, the PATRIOT Act, in each case at least three Business Days five (5) days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree)Date.
(de) All actions necessary to establish that the Collateral Administrative Agent will have a perfected first priority security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Sources: Credit Agreement (Rapid Roaming Co)
Conditions to Closing Date. Each Lender’s respective Commitments The obligation of each Lender to make its initial Credit Extension hereunder shall become effective, on the terms and Closing Date is subject to satisfaction of the other following conditions set forth herein, upon the satisfaction precedent (or waiver (thereof in accordance with Section 10.01) of the following conditions precedent:):
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as Party (other than in respect of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Datea)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower Agent and its Subsidiaries, giving effect to the Transactions):legal counsel:
(i) executed counterparts of (A) this Agreement from the Borrower, (B) and the Guaranty from each Guarantor and of the Loan Parties listed on the signature pages thereto;
(Cii) the Security Agreement from a Term Note executed by the Borrower and in favor of each Guarantor; Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (subject to the last paragraph of this Section 4.01):except as provided in such Collateral Documents);
(A) copies of proper financing statementscertificates, filed or duly prepared for filing under if any, representing the Uniform Commercial Code pledged equity referred to therein, accompanied by undated stock powers executed in all jurisdictions that blank and (if applicable) instruments evidencing the Administrative Agent may deem reasonably necessary pledged debt referred to therein endorsed in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,blank;
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to perfect satisfy the Collateral and protect the Liens created thereby Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), Collateral Agent; and
(C) the Pledge Agreementcertified copies of UCC, duly executed United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Borrower and Security Agreement or that the Guarantors, together with Administrative Agent deems necessary or appropriate;
(subject to the last paragraph of this Section 4.01iv) such certificates, if anycopies of Organization Documents of the Loan Parties, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as party on the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit ExtensionClosing Date;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & from (i) K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel to the Loan PartiesParties and (ii) Cozen O’▇▇▇▇▇▇, addressed to each Lender, in form and substance reasonably satisfactory Pennsylvania counsel to the Administrative Agent;
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative AgentParties; and
(viiivi) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory a certificate attesting to the Administrative AgentSolvency of the Parents, the Borrower and the Restricted Subsidiaries (on a Consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties.
(b) Since All fees and expenses required to be paid hereunder or pursuant to the Agent Fee Letter and Engagement Letter, to the extent invoiced at least three (x3) December 31, 2012 through Business Days prior to the date of Closing Date shall have been paid in full in cash or will be paid on the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse EffectClosing Date.
(c) The Borrower and each Guarantor Lead Arrangers shall have provided received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(d) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(e) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least ten (10) days Business Days prior to the Closing Date by the Lenders Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-money laundering rules and regulations, including without limitation the USA PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Term Intercreditor Agreement Representations and the ABL Intercreditor Agreement shall be true have been duly executed and correct in all material respectsdelivered by each Loan Party thereto.
(g) The Specified Representations shall be true and correct in Evidence that all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees insurance required to be paid maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all casualty insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral. For purposes of determining whether the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01has occurred, each Lender as of the Closing Date that has executed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from or such Lender, as the case may be, unless such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to has notified the Administrative Agent on or of any disagreement prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Sources: Credit Agreement (Utz Brands, Inc.)
Conditions to Closing Date. Each Lender’s respective Commitments The obligation of each Lender to make its initial Credit Extension hereunder shall become effective, on the terms and is subject to satisfaction of the other following conditions set forth herein, upon the satisfaction precedent (or waiver (thereof in accordance with Section 10.01) of the following conditions precedent:):
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as Party (other than in respect of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Datea)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower Agent and its Subsidiaries, giving effect to the Transactions):legal counsel:
(i) executed counterparts of (A) this Agreement from the Borrower, (B) and the Guaranty from each Guarantor and of the Loan Parties listed on the signature pages thereto;
(Cii) the Security Agreement from a Bridge Note executed by the Borrower and in favor of each Guarantor; Lender that has requested a Bridge Note at least five (5) Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (subject to the last paragraph of this Section 4.01):except as provided in such Collateral Documents);
(A) copies of proper financing statementscertificates, filed or duly prepared for filing under if any, representing the Uniform Commercial Code pledged equity referred to therein, accompanied by undated stock powers executed in all jurisdictions that blank and (if applicable) instruments evidencing the Administrative Agent may deem reasonably necessary pledged debt referred to therein endorsed in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,blank;
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to perfect satisfy the Collateral and protect the Liens created thereby Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), Collateral Agent; and
(C) the Pledge Agreementcertified copies of UCC, duly executed United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Borrower and Security Agreement or that the GuarantorsAdministrative Agent deems necessary or appropriate;
(iv) such certificates, together with including certificates of good standing (subject to the last paragraph extent such concept exists) from the applicable secretary of this Section 4.01) certificatesstate of the state of organization of each Loan Party, if anycopies of Organization Documents of the Loan Parties, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as party on the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit ExtensionClosing Date;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & from (i) K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel to the Loan Parties; (ii) Cozen O’▇▇▇▇▇▇, addressed to each Lender, in form and substance reasonably satisfactory Pennsylvania counsel to the Administrative Agent;
Loan Parties; and (viiiii) opinions of local P▇▇▇▇▇▇ Coie LLP, Washington counsel for to the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative AgentParties; and
(viiivi) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory a certificate attesting to the Administrative AgentSolvency of the Parent, the Borrower and the Restricted Subsidiaries (on a Consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties.
(b) Since All fees and expenses required to be paid hereunder or pursuant to the Fee Letter and Commitment Letter, to the extent invoiced at least two (x2) December 31, 2012 through Business Days prior to the date of Closing Date shall have been paid in full in cash or will be paid on the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse EffectClosing Date.
(c) The Borrower and each Guarantor Lead Arrangers shall have provided received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(d) Prior to or substantially simultaneously with the Closing Date, the Target’s amended and restated credit and guaranty agreement, dated as of April 25, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among, inter alios, Truco Enterprises, LP, a Delaware limited partnership, the guarantors from time to time party thereto, MidCap Financial Trust, as administrative agent, and the lenders from time to time party thereto, will be repaid and the commitments thereunder terminated and liens granted in connection therewith released.
(e) The Administrative Agent and the Lead Arrangers shall have received at least five (5) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least ten (10) days Business Days prior to the Closing Date by the Lenders Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-money laundering rules and regulations, including without limitation the USA PATRIOT Act, in each case at least three Business Days prior to Act and the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree)Beneficial Ownership Regulation.
(di) All actions necessary to establish that the Collateral Agent will have The Pari Passu Intercreditor Agreement and (ii) a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) joinder substantially in the Collateral shall have been takenform of Exhibit B to the ABL Intercreditor Agreement, in each case, to the extent such Collateral shall have been duly executed and delivered by each Loan Party thereto.
(including the creation or perfection of any security interestg) is Evidence that all insurance required to be provided on the Closing Date maintained pursuant to the last paragraph Loan Documents has been obtained and is in effect, together with the certificates of this Section 4.01insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all casualty insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral.
(eh) The Acquisition shall have been consummated, or shall be consummated substantially simultaneously concurrently with the initial borrowing under of the Facilities, shall be consummatedBridge Loans, in all material respects in accordance with the terms of the Purchase Acquisition Agreement, without giving effect to . The Acquisition Agreement shall not have been amended or waived in any modifications or amendments, or any consents or waivers thereunder material respect by the Borrower that are or any of its affiliates, nor shall the Borrower or any of its affiliates have given a material consent thereunder, in each case in a manner materially adverse to the Lenders or the Arrangers (in their capacity as such) without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance).
(fi) No Material Adverse Effect (as defined in the Acquisition Agreement) shall have occurred since the date of the Acquisition Agreement.
(j) The Specified Purchase Acquisition Agreement Representations shall be true and correct in all material respects.
(g) The and the Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid respects on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) certificate, dated as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X a Responsible Officer of the Securities Act of 1933Borrower, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining confirming compliance with the conditions specified set forth in this Sections 4.01(h), (i) and (j).
(l) The Administrative Agent shall have received the Committed Loan Notice in accordance with Section 4.012.02. For purposes of determining whether the Closing Date has occurred, each Lender as of the Closing Date that has executed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from or such Lender, as the case may be, unless such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to has notified the Administrative Agent on or of any disagreement prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Conditions to Closing Date. Each Lender’s respective Commitments hereunder shall become effective, on the terms and The effectiveness of this credit facility is subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent’s (or its counsel) receipt of the following, each of which shall be originals or facsimiles or “.pdf” files telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if Borrower (as applicable), each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), ) and each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions):: hereof;
(i) executed counterparts of (A) this Agreement from the Borrower, (B) the Guaranty from each Guarantor and (C) the Security Agreement from the Borrower and each Guarantor; together with (subject to the last paragraph of this Section 4.01):
(A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject to the last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,;
(ii) a Request for Credit Extension in accordance with the requirements
(iii) [Reserved];
(iv) such customary certificates of resolutions or other action 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 and other transactions hereunderaction, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors is a party or is to be a party;
(iiiv) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them the Borrower is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where its ownership, exceptlease or operation of properties or the conduct of its business requires such qualification, other than with respect to the Borrower, except to the extent that failure to be in good standing do so could not reasonably be expected to have a Material Adverse Effect;
(ivvi) a Committed Loan Notice favorable opinion letter of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and a Letter of Credit Application, if applicable, in each case the Initial Lender and covering such matters relating to the initial Credit ExtensionLoan Documents as the Administrative Agent may reasonably require;
(vvii) a solvency certificate from signed by a financial officer Responsible Officer of the Borrower certifying(A) that the representations and warranties of the Borrower contained in Sections 5.01(a), 5.01(b)(ii), 5.02(a) and (c) and 5.04 are true and correct on and as of the Closing Date and (B) the current Debt Ratings (if any); and 44 Cboe Global Markets, Inc. - Credit Agreement(Term Loan Credit Facility)
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Arranger reasonably may require.
(b) Each of the representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of Closing Date; 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 the Transactionsany qualification therein) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through the date of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effectall respects.
(c) No Default shall exist, or would result from the Credit Extensions or from the application of the proceeds therefrom.
(d) The Borrower and each Guarantor Administrative Agent shall have provided received, at least three (3) Business Days prior to the Closing Date, all documentation and other information reasonably requested in writing at least ten (10) days prior to about the Closing Date by the Lenders that they reasonably determine is Borrower required by regulatory authorities under applicable “know your customer” and anti-money-money laundering rules and regulations, including including, without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), reasonably requested in each case writing by the Administrative Agent (on behalf of the Initial Lender) at least ten (10) Business Days prior to the Closing Date.
(e) Any fees required to be paid on or before the Closing Date shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (directly to such counsel if requested by the Administrative Agent) of the Administrative Agent to the extent invoiced at least three Business Days prior to the Closing Date Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of such Attorney Costs incurred by it through the closing proceedings (or provided that such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition estimate shall not be deemed to be materially adverse to the interests thereafter preclude a final settling of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of accounts among the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing DateAdministrative Agent), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. 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 the Lender as of the Closing Date 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such the Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Cboe Global Markets, Inc.)
Conditions to Closing Date. Each Lender’s respective Commitments The obligation of each Lender to make its initial Credit Extension hereunder shall become effective, on the terms and is subject to satisfaction of the other following conditions set forth herein, upon the satisfaction precedent (or waiver (thereof in accordance with Section 10.01) of the following conditions precedent:):
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (which may be delivered via email) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as Party (other than in respect of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Datea)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower Agent and its Subsidiaries, giving effect to the Transactions):legal counsel:
(i) executed counterparts of (A) this Agreement from the Borrower, (B) and the Guaranty from each Guarantor and of the Loan Parties listed on the signature pages thereto;
(Cii) a Note executed by the Security Agreement from Borrowers in favor of each Lender that has requested a Note at least five (5) Business Days in advance of the Borrower and Closing Date;
(iii) each Guarantor; Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (subject to except as provided in such Collateral Documents or, in the last paragraph case of this Section 4.01):clause (A) below, the Closing Date Intercreditor Agreement);
(A) copies of proper financing statementscertificates, filed or duly prepared for filing under if any, representing the Uniform Commercial Code pledged equity referred to therein, accompanied by undated stock powers, if applicable, executed in all jurisdictions that blank and (if applicable) instruments evidencing the Administrative Agent may deem reasonably necessary pledged debt referred to therein endorsed in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,blank; and
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to perfect satisfy the Collateral and protect the Liens created thereby Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), andCollateral Agent;
(Civ) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject to the last paragraph of this Section 4.01) such certificates, if anycopies of Organization Documents of the Loan Parties, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as party on the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit ExtensionClosing Date;
(v) a solvency certificate legal opinions, in customary form, from a financial officer of the Borrower (after giving effect to the Transactionsi) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as New York and Delaware counsel to the Loan Parties, addressed to each Lender(ii) Greenbaum, in form and substance reasonably satisfactory Rowe, ▇▇▇▇▇ & ▇▇▇▇▇ LLP, as special New Jersey counsel to the Administrative AgentLoan Parties, and (iii) Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, as special Virginia and North Carolina counsel to the Loan Parties;
(vi) a certificate signed by a Responsible Officer of the Parent Borrower certifying that the conditions set forth in clause (h) below is satisfied; and
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory a certificate attesting to the Administrative Agent; and
Solvency of the Parent Borrower and its Subsidiaries (viiion a consolidated basis) opinions of FCC counsel for on the Loan Parties, in form and substance reasonably satisfactory Closing Date after giving effect to the Administrative AgentTransactions, from Parent Borrower’s chief financial officer or other officer with equivalent duties.
(b) Since (x) December 31, 2012 through The Parent Borrower shall have paid all fees and other amounts due and payable to the date of Lead Arrangers and the Purchase Administrative Agent in connection with this Agreement, there has not occurred any eventincluding reimbursement or payment of reasonable and documented costs and expenses actually incurred by the Lead Arranger or Administrative Agent in connection with this Agreement, developmentincluding the reasonable fees, change or effect that has had or could reasonably be expected to haveexpenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, individually or in the aggregatecase of expenses, a Target Material Adverse Effect and to the extent invoiced at least three (y3) Business Days prior to the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse EffectClosing Date.
(c) The Borrower and each Guarantor Closing Date Intercreditor Agreement shall have provided been duly executed and delivered by each Loan Party thereto.
(d) The Lead Arrangers shall have received Audited Parent Borrower Financial Statements and the Unaudited Parent Borrower Financial Statements.
(e) Prior to or substantially simultaneously with the initial Borrowing hereunder on the Closing Date, the Refinancing shall have occurred.
(f) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrowers and the Guarantors as has been reasonably requested in writing at least ten (10) days Business Days prior to the Closing Date by the Lenders Administrative Agent or the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-money laundering rules and regulations, including without limitation the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each caseAct and, to the extent such Collateral (including required by the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01Beneficial Ownership Regulation, a Beneficial Ownership Certification.
(eg) The Acquisition shall have been consummated, Prior to or substantially simultaneously concurrently with the initial borrowing under Borrowing hereunder, the Facilities, Merger shall be consummated, in all material respects in accordance with the terms of the Purchase AgreementMerger Agreement as in effect on January 7, 2022, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed delayed, denied or conditionedconditioned and provided that the Lead Arrangers shall be deemed to have consented to such amendment, consent or waiver unless they shall object thereto within three (3) Business Days after written notice of such amendment, consent or waiver) (it is being understood and agreed that (a) any change increase in the purchase price in connection with of, or consideration for, the Acquisition shall Merger is not be materially adverse to the interests of the Lenders or the Lead Arrangers to the extent any such increase is pursuant to a working capital or other purchase price adjustment or not funded by additional indebtedness (other than permitted Revolving Credit Loans), (b) any reduction of 10% or less of the purchase price of, or consideration for, the Merger is deemed to be not materially adverse to the interests of the Lenders and the Lead Arrangers; provided that , (Ac) any reduction of more than 10% of the purchase price of, consideration for, the Merger is deemed to be not materially adverse to the extent resulting in a lower cash funding by interests of the Borrower shall be allocated Lenders and the Lead Arrangers so long as any such reduction above 10% of the purchase price of, or consideration for, the Merger is pursuant to a reduction working capital or other purchase price adjustment or reduces dollar-for-dollar the commitments under the Term Facility and (d) any amendment to the definition of “Material Adverse Effect” is materially adverse to the interests of the Term Facility, Lenders and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity IssuanceLead Arrangers).
(fh) (i) The Specified Purchase Merger Agreement Representations shall be true and correct in all material respects.
respects to the extent required by the terms of the definitions thereof and (gii) The the Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings respects on the Closing Date, in each case, and unless such representations relate to an earlier date, in which case, such representations shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummatedbeen true and correct in all material respects as of such earlier date.
(i) All fees required Since the date of the Merger Agreement there shall have been no effect, change, event, fact, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to be paid have a Material Adverse Effect (as defined in the Merger Agreement as in effect on January 7, 2022) and is continuing on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on Date. For purposes of determining whether the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01has occurred, each Lender as of the Closing Date that has executed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from or such Lender, as the case may be, unless such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to has notified the Administrative Agent on or of any disagreement prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Conditions to Closing Date. Each Lender’s respective Commitments The obligations of (x) the Lenders to make Revolving Credit Loans and (y) any L/C Issuer to issue Letters of Credit or increase the stated amounts of Letters of Credit hereunder shall become effective, on the terms and provided hereunder are subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance waiver, prior to or concurrently with Section 10.01) the making of such extension of credit on the Closing Date, of the following conditions precedent:
(a) The the Administrative Agent's receipt from each of the Borrowers and the Lenders of either (i) executed counterparts of this Agreement or (ii) evidence satisfactory to the Administrative Agent shall have received all (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent's receipt of either (i) executed counterparts of the followingIntercreditor Agreement by each party thereto or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Intercreditor Agreement;
(c) subject to Section 6.19 (it being understood that any document required to be delivered pursuant to Section 6.19 shall not constitute a condition precedent under this Section 4.01), each the Administrative Agent's receipt of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, the following documents each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), ) and each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions)::
(i) either (A) executed counterparts of (A) this Agreement from the Borrower, Guaranty by each Loan Party or (B) evidence satisfactory to the Guaranty from Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Guaranty;
(ii) a Note duly executed by the Borrowers in favor of each Guarantor and Lender requesting a Note at least 3 Business Days prior to the Closing Date;
(Ciii) the Security Agreement from the Borrower and each Guarantor; a completed Borrowing Base Certificate;
(iv) a security agreement, (together with (subject each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "Security Agreement"), duly executed by each Domestic Loan Party, together with, to the last paragraph of this Section 4.01):extent not already delivered to the Administrative Agent:
(A) copies to the extent required under the applicable Security Documents and the Intercreditor Agreement, certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(B) proper financing statements, filed or duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been takenunder the Security Agreement, completed covering the Collateral described in the Security Agreement;
(C) a Perfection Certificate, duly executed by a Responsible Officer of the Parent Borrower;
(D) copies of Uniform Commercial Code, tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Domestic Loan Party as debtor and that are filed in those state and county jurisdictions in which any Domestic Loan Party is organized or maintains its principal place of business (or as otherwise provided for agreed by the Administrative Agent and the Parent Borrower), none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and Liens securing obligations under the Existing Credit Agreement);
(E) evidence of insurance required by the terms of the Security Agreement or Section 6.07 of this Agreement;
(F) Control Agreements to the extent required by Section 6.17 hereof; and
(G) IP Security Agreements, in a manner form and substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement; and
(v) deeds of trust, trust deeds, deeds to secure debt and mortgages (reasonably satisfactory to the Administrative Agent and its counsel) covering the Mortgaged Properties listed on Schedule 5.08(c) (including receipt together with the fixture filings and Assignments of duly executed payoff lettersLeases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, customary lien searches and UCC-3 termination statementsin each case as amended, the "Mortgages"), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantorsappropriate Loan Party, together with with:
(A) 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 reasonably necessary or desirable in order to create, subject to the last paragraph Intercreditor Agreement, a valid and subsisting Lien on the property described therein in favor of this Section 4.01) certificatesthe Administrative Agent for the benefit of the Secured Parties, if anysubject only to Permitted Liens, representing the Pledged Shares referred to therein accompanied by undated stock powers executed and that all filing, documentary, stamp, intangible and recording taxes and other fees in blankconnection therewith have been paid,
(iiB) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies"), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued by title insurers reasonably 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 Liens, excepting only Permitted Liens, and providing for such other affirmative insurance as the Administrative Agent may deem reasonably necessary,
(C) (1) American Land Title Association/American Congress on Surveying and Mapping form surveys or (2) to the extent surveys exist and the title insurer is willing to issue the applicable Mortgage Policies with survey coverage and survey endorsements acceptable to the Administrative Agent in its Permitted Discretion (in which case the appropriate Loan Party shall deliver such affidavits of no change or similar as required by the title insurer), updates thereof to the extent required by the title insurer, in each case, for which all necessary fees (where applicable) have been paid, 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 otherwise acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Security Agreement,
(E) a completed "Life-of-Loan" Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto) and, if any "Building" (as defined in 12 CFR Chapter III, Section 339.2) included as part of such Mortgaged Property is located within a special flood hazard area as determined by the Federal Emergency Management Agency and if flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor thereto) then copies of the appropriate Loan Party'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 each Lender and naming the Administrative Agent as loss payee on behalf of the Secured Parties, and
(F) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages, subject only to Permitted Liens, has been taken;
(vi) customary certificates of resolutions or other action authorizing the executionaction, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings and other transactions hereunder, customary incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor as the Administrative Agent may reasonably require Loan Party 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iiivii) such customary documents and certifications evidencing that each Domestic Loan Party (including Organization Documents and, if applicable, good standing certificatesA) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, including certified true and that correct copies of the charter of each of them Domestic Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing and in good standingexisting, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not and qualified to engage in business in the jurisdiction of its organization, in form and substance reasonably be expected acceptable to have a Material Adverse Effectthe Administrative Agent;
(ivviii) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an favorable opinion of Debevoise Cravath, Swaine & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viiix) favorable opinions of local counsel for the Domestic Loan Parties listed in the jurisdictions set forth on Schedule 4.01(a) heretoExhibit F, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(x) a certificate attesting to the Solvency of the Loan Parties, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of the Parent Borrower; and
(viiixi) opinions a certificate signed by a Responsible Officer of FCC counsel for the Loan PartiesBorrower certifying that (A) the conditions specified in Section 4.01(g), (h) and (i) and in form and substance reasonably satisfactory to the Administrative Agent.
Sections 4.02(a), (b) Since and (xc) December have been satisfied and (B) since March 31, 2012 through the date of the Purchase Agreement2018, there has not occurred been any eventevent or circumstance which, developmentsingly or in the aggregate, change or effect that has had resulted in or could reasonably be expected to have, individually or result in the aggregate, a Target Material Adverse Effect Effect; provided, however, that each of the requirements set forth in clause (iv) or (v) above (except for the delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the UCC or customary "short form" intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office or (y) the date delivery of stock certificates of each Domestic Subsidiary of the Purchase Agreement, there Parent Borrower that is a Material Subsidiary) shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided constitute conditions precedent to the documentation and other information reasonably requested in writing at least ten (10) days Initial Credit Extension on the Closing Date after the Parent Borrower's use of commercially reasonable efforts to provide such items on or prior to the Closing Date by if the Lenders that they reasonably determine is Parent Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Actto perfect such security interests within 90 days (or, in each the case at least three Business Days prior to of clause (v), 120 days) after the Closing Date (or such shorter period as subject to extensions approved by the Administrative Agent shall otherwise agreein its reasonable discretion).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral The Borrowers shall have been takenpaid, in each case, on or prior to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummatedDate, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All all fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to Section 2.09 hereof and (ii) all other fees and expenses (including the Commitment LetterAttorney Costs of ▇▇▇▇▇▇▇▇ ▇▇▇▇ Ltd.) required to be paid pursuant to Section 10.04(a) for which invoices shall have been presented to the Parent Borrower at least 1 Business Day prior to the Closing Date.
(e) All Indebtedness of the Parent Borrower and its Subsidiaries under the Existing Credit Agreement shall have been repaid in full, all commitments in respect thereof shall have been terminated and all guarantees therefor and security therefor shall be released (or substantially concurrently with the effectiveness of this Agreement on the Closing Date shall be repaid, terminated and released), and the Administrative Agent shall have received pay-off letters in form and substance reasonably satisfactory to it from the administrative agent under the Existing Credit Agreement evidencing such repayment, termination and release.
(f) The Borrowers shall have provided to the Administrative Agent (i) the documentation and other information that is required by regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the Act, with respect to the Domestic Loan Parties to the extent invoiced in reasonable detail reasonably requested by the Administrative Agent or any Lender at least three 10 Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shallDate, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) to the extent applicable, a Beneficial Ownership Certification with respect to any Borrower that qualifies as a "legal entity customer" under the Beneficial Ownership Regulation to the extent requested by the Administrative Agent or any Lender, in each case, the results of which are reasonably satisfactory to the Administrative Agent and any such audited financial statements may include a disclaimer of opinion arising out of Lender.
(g) The parties thereto shall have executed and delivered the scope limitation of Term Loan Credit Agreement and the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target other Term Loan Documents and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended incurred at least 120 days before $109,343,000 in aggregate principal amount of loans from the Closing Date, lenders under the Term Loan Credit Agreement.
(ch) audited consolidated balance sheets of Local TV, LLC (“Local”), for The parties thereto shall have executed and delivered the two (2) most recently completed fiscal years ended Junior Term Loan Credit Agreement and the other Junior Term Loan Documents and incurred at least 120 days before $40,000,000 in aggregate principal amount of loans from the lenders under the Junior Term Loan Credit Agreement.
(i) After giving effect to the Transactions to be consummated on the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c)Initial Credit Extension, the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other Excess Availability shall be not less than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting$85,000,000. 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 as of the Closing Date 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the The Administrative Agent on or prior to shall promptly notify the Parent Borrower and the Lenders of the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filingsuch notice shall be conclusive and binding.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Vista Outdoor Inc.)
Conditions to Closing Date. Each Lender’s respective Commitments The effectiveness of this Agreement and the obligations of each Lender hereunder shall become effective, on the terms and are subject to the other conditions set forth herein, upon the satisfaction (or waiver (in accordance with Section 10.01waiver) of the following conditions precedent, except as otherwise agreed between the Lead Borrower and the Administrative Agent:
(a1) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or originals, facsimiles or “.pdf” files copies in .pdf format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, :
(a) a Committed Loan Notice and a Note executed by the Borrowers in favor of each dated as Lender that has requested a Note prior to the Closing Date;
(b) executed counterparts of this Agreement and the Guaranty;
(c) each Collateral Document set forth on Schedule 4.01(1)(c) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is party thereto, together with (or, in the case of certificates of governmental officials, as of a recent date before the Closing Datesubject to Section 6.13(2), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions):
(i) certificates, if any, representing the Pledged Collateral that is certificated equity of the Borrowers and the Loan Parties’ Domestic Subsidiaries accompanied by undated stock powers executed counterparts of (A) this Agreement from the Borrower, (B) the Guaranty from each Guarantor and (C) the Security Agreement from the Borrower and each Guarantor; together with (subject to the last paragraph of this Section 4.01):in blank;
(Aii) copies evidence that all UCC-1 financing statements in the jurisdiction of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions organization of each Loan Party that the Administrative Agent and the Collateral Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering satisfy the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby Guarantee Requirement shall have been takenprovided for, completed or otherwise provided and arrangements for the filing thereof in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), shall have been made; and
(Ciii) evidence that all insurance required to be maintained pursuant to the Pledge Agreement, duly executed by the Borrower Loan Documents has been obtained and is in effect and the Guarantors, together Administrative Agent and Collateral Agent have been named as loss payee and additional insured under each insurance policy with respect to which the Administrative Agent shall have requested to be so named;
(subject d) certificates of good standing from the secretary of state of the state of organization of each Loan Party (to the last paragraph of this Section 4.01) certificatesextent such concept exists in such jurisdiction), if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunderaction, incumbency certificates and/or or other certificates of Responsible Officers of each Loan Party certifying true and complete copies of the Borrower Organizational Documents attached thereto and each Guarantor 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a partyparty on the Closing Date;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(ive) a Committed Loan Notice and a Letter of Credit Applicationcustomary legal opinion from (i) ▇▇▇▇▇▇, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to and (ii) each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) opinions of local counsel for to the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through the date of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.014.01(1)(e) in the Collateral shall have been taken, in each case, to the extent jurisdictions indicated on such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.schedule;
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds a certificate of a Responsible Officer of Holdings certifying that each of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that conditions set forth in the Report of Independent Auditors dated as of May 31, 2013Sections 4.01(5), (b4.02(1) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two 4.02
(2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have has been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred satisfied as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16date; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filingand
Appears in 1 contract
Sources: Credit Agreement (Chobani Inc.)
Conditions to Closing Date. Each Lender’s respective Commitments The obligation of each Lender to make its initial Credit Extension hereunder shall become effective, on the terms and is subject to satisfaction of the other following conditions set forth herein, upon the satisfaction precedent (or waiver (thereof in accordance with Section 10.01) of the following conditions precedent:):
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (which may be delivered via email) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as Party (other than in respect of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Datea)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower Agent and its Subsidiaries, giving effect to the Transactions):legal counsel:
(i) executed counterparts of (A) this Agreement from the Borrower, (B) and the Guaranty from each Guarantor and of the Loan Parties listed on the signature pages thereto;
(Cii) a Note executed by the Security Agreement from Borrowers in favor of each Lender that has requested a Note at least five (5) Business Days in advance of the Borrower and Closing Date;
(iii) each Guarantor; Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (subject to the last paragraph of this Section 4.01):except as provided in such Collateral Documents);
(A) copies of proper financing statementscertificates, filed or duly prepared for filing under if any, representing the Uniform Commercial Code pledged equity referred to therein, accompanied by undated stock powers, if applicable, executed in all jurisdictions that blank and (if applicable) instruments evidencing the Administrative Agent may deem reasonably necessary pledged debt referred to therein endorsed in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,blank; and
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to perfect satisfy the Collateral and protect the Liens created thereby Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), andCollateral Agent;
(Civ) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject to the last paragraph of this Section 4.01) such certificates, if anycopies of Organization Documents of the Loan Parties, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as party on the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit ExtensionClosing Date;
(v) a solvency certificate legal opinions, in customary form, from a financial officer of the Borrower (after giving effect to the Transactionsi) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as New York and Delaware counsel to the Loan Parties, addressed to each Lender(ii) Greenbaum, in form and substance reasonably satisfactory Rowe, ▇▇▇▇▇ & ▇▇▇▇▇ LLP, as special New Jersey counsel to the Administrative AgentLoan Parties, and (iii) Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, as special Virginia and North Carolina counsel to the Loan Parties;
(vi) a certificate signed by a Responsible Officer of the Parent certifying that the conditions set forth in clause (f) below is satisfied;
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory a certificate attesting to the Administrative Agent; and
Solvency of the Parent and its Subsidiaries (viiion a consolidated basis) opinions of FCC counsel for on the Loan Parties, in form and substance reasonably satisfactory Closing Date after giving effect to the Administrative AgentTransactions, from Parent’s chief financial officer or other officer with equivalent duties.
(b) Since (x) December 31, 2012 through The Parent shall have paid all fees and other amounts due and payable to the date of Lead Arrangers and the Purchase Administrative Agent in connection with this Agreement, there has not occurred any event, development, change including reimbursement or effect that has had payment of reasonable and documented costs and expenses actually incurred by the Lead Arranger or could reasonably be expected to have, individually or Administrative Agent in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase connection with this Agreement, there shall not have occurred a Target Material Adverse Effectincluding the reasonable fees, expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in each case, to the extent invoiced at least three (3) Business Days prior to the Closing Date.
(c) The Borrower and each Guarantor Lead Arrangers shall have provided received Audited Parent Financial Statements.
(d) Prior to or substantially simultaneously with the occurrence of the closing on the Closing Date, the Refinancing shall have occurred.
(e) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrowers and the Guarantors as has been reasonably requested in writing at least ten (10) days Business Days prior to the Closing Date by the Lenders Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-money laundering rules and regulations, including without limitation the USA PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each caseAct and, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummatedby 31 C.F.R. § 1010.230, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms a certification of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity IssuanceBorrowers regarding beneficial ownership.
(f) The Specified Purchase Agreement Representations shall Since December 31, 2020, no events have occurred or circumstances have arisen that, individually or in the aggregate, have had or reasonably would be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have beenexpected to have, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on a Material Adverse Effect. For purposes of determining whether the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01has occurred, each Lender as of the Closing Date that has executed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from or such Lender, as the case may be, unless such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to has notified the Administrative Agent on or of any disagreement prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Conditions to Closing Date. Each Lender’s respective Commitments The obligations of the Lenders to make Term Loans hereunder shall become effective, on the terms and provided hereunder are subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance waiver, prior to or concurrently with Section 10.01) the making of such extension of credit on the Closing Date, of the following conditions precedent:
(a) The the Administrative Agent's receipt from the Parent Borrower and the Lenders of either (i) executed counterparts of this Agreement or (ii) evidence satisfactory to the Administrative Agent shall have received all (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent's receipt of either (i) executed counterparts of the followingIntercreditor Agreement by each party thereto or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Intercreditor Agreement;
(c) subject to Section 6.19 (it being understood that any document required to be delivered pursuant to Section 6.19 shall not constitute a condition precedent under this Section 4.01), each the Administrative Agent's receipt of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, the following documents each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), ) and each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions)::
(i) either (A) executed counterparts of (A) this Agreement from the Borrower, Guaranty by each Loan Party or (B) evidence satisfactory to the Guaranty from Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Guaranty;
(ii) a Note duly executed by the Parent Borrower in favor of each Guarantor and Lender requesting a Note at least 3 Business Days prior to the Closing Date;
(Ciii) the Security Agreement from the Borrower and each Guarantor; [Reserved];
(iv) a security agreement, (together with (subject each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "Security Agreement"), duly executed by each Domestic Loan Party, together with, to the last paragraph of this Section 4.01):extent not already delivered to the Administrative Agent:
(A) copies to the extent required under the applicable Security Documents and the Intercreditor Agreement, certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(B) proper financing statements, filed or duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been takenunder the Security Agreement, completed covering the Collateral described in the Security Agreement;
(C) a Perfection Certificate, duly executed by a Responsible Officer of the Parent Borrower;
(D) copies of Uniform Commercial Code, tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Domestic Loan Party as debtor and that are filed in those state and county jurisdictions in which any Domestic Loan Party is organized or maintains its principal place of business (or as otherwise provided for agreed by the Administrative Agent and the Parent Borrower), none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and Liens securing obligations under the Existing Credit Agreement);
(E) evidence of insurance required by the terms of the Security Agreement or Section 6.07 of this Agreement;
(F) Control Agreements to the extent required by Section 6.17 hereof; and
(G) IP Security Agreements, in a manner form and substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement; and
(v) deeds of trust, trust deeds, deeds to secure debt and mortgages (reasonably satisfactory to the Administrative Agent and its counsel) covering the Mortgaged Properties listed on Schedule 5.08(c) (including receipt together with the fixture filings and Assignments of duly executed payoff lettersLeases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, customary lien searches and UCC-3 termination statementsin each case as amended, the "Mortgages"), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantorsappropriate Loan Party, together with with:
(A) 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 reasonably necessary or desirable in order to create, subject to the last paragraph Intercreditor Agreement, a valid and subsisting Lien on the property described therein in favor of this Section 4.01) certificatesthe Administrative Agent for the benefit of the Secured Parties, if anysubject only to Permitted Liens, representing the Pledged Shares referred to therein accompanied by undated stock powers executed and that all filing, documentary, stamp, intangible and recording taxes and other fees in blankconnection therewith have been paid,
(iiB) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies"), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid Requisite Priority and subsisting Liens on the property described therein, free and clear of all Liens, excepting only Permitted Liens, and providing for such other affirmative insurance as the Administrative Agent may deem reasonably necessary,
(C) (1) American Land Title Association/American Congress on Surveying and Mapping form surveys or (2) to the extent surveys exist and the title insurer is willing to issue the applicable Mortgage Policies with survey coverage and survey endorsements acceptable to the Administrative Agent in its Permitted Discretion (in which case the appropriate Loan Party shall deliver such affidavits of no change or similar as required by the title insurer), updates thereof to the extent required by the title insurer, in each case, for which all necessary fees (where applicable) have been paid, 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 otherwise acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Security Agreement,
(E) a completed "Life-of-Loan" Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto) and, if any "Building" (as defined in 12 CFR Chapter III, Section 339.2) included as part of such Mortgaged Property is located within a special flood hazard area as determined by the Federal Emergency Management Agency and if flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor thereto) then copies of the appropriate Loan Party'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 each Lender and naming the Administrative Agent as loss payee on behalf of the Secured Parties, and
(F) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages, subject only to Permitted Liens, has been taken;
(vi) customary certificates of resolutions or other action authorizing the executionaction, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings and other transactions hereunder, customary incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor as the Administrative Agent may reasonably require Loan Party 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iiivii) such customary documents and certifications evidencing that each Domestic Loan Party (including Organization Documents and, if applicable, good standing certificatesA) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, including certified true and that correct copies of the charter of each of them Domestic Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing and in good standingexisting, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not and qualified to engage in business in the jurisdiction of its organization, in form and substance reasonably be expected acceptable to have a Material Adverse Effectthe Administrative Agent;
(ivviii) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an favorable opinion of Debevoise Cravath, Swaine & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viiix) favorable opinions of local counsel for the Domestic Loan Parties listed in the jurisdictions set forth on Schedule 4.01(a) heretoExhibit F, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(x) a certificate attesting to the Solvency of the Loan Parties, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of the Parent Borrower; and
(viiixi) opinions a certificate signed by a Responsible Officer of FCC counsel for the Loan PartiesParent Borrower certifying that (A) the conditions specified in Section 4.01(g), in form (h), (j) and substance reasonably satisfactory to the Administrative Agent.
(bk) Since have been satisfied and (xB) December since March 31, 2012 through the date of the Purchase Agreement2018, there has not occurred been any eventevent or circumstance which, developmentsingly or in the aggregate, change or effect that has had resulted in or could reasonably be expected to have, individually or result in the aggregate, a Target Material Adverse Effect Effect; provided, however, that each of the requirements set forth in clause (iv) or (v) above (except for the delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the UCC or customary "short form" intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office or (y) the date delivery of stock certificates of each Domestic Subsidiary of the Purchase Agreement, there Parent Borrower that is a Material Subsidiary) shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided constitute conditions precedent to the documentation and other information reasonably requested in writing at least ten (10) days Credit Extension on the Closing Date after the Parent Borrower's use of commercially reasonable efforts to provide such items on or prior to the Closing Date by if the Lenders that they reasonably determine is Parent Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Actto perfect such security interests within 90 days (or, in each the case at least three Business Days prior to of clause (v), 120 days) after the Closing Date (or such shorter period as subject to extensions approved by the Administrative Agent shall otherwise agreein its reasonable discretion).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral The Parent Borrower shall have been takenpaid, in each case, on or prior to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummatedDate, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All all fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to Section 2.09 hereof and (ii) all other fees and expenses (including the Commitment LetterAttorney Costs of ▇▇▇▇▇▇▇▇ ▇▇▇▇ Ltd.) required to be paid pursuant to Section 10.04(a) for which invoices shall have been presented to the Parent Borrower at least 1 Business Day prior to the Closing Date.
(e) All Indebtedness of the Parent Borrower and its Subsidiaries under the Existing Credit Agreement shall have been repaid in full, all commitments in respect thereof shall have been terminated and all guarantees therefor and security therefor shall be released (or substantially concurrently with the effectiveness of this Agreement on the Closing Date shall be repaid, terminated and released), and the Administrative Agent shall have received pay-off letters in form and substance reasonably satisfactory to it from the administrative agent under the Existing Credit Agreement evidencing such repayment, termination and release.
(f) The Parent Borrower shall have provided to the Administrative Agent (i) the documentation and other information that is required by regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the Act, with respect to the Domestic Loan Parties to the extent invoiced in reasonable detail reasonably requested by the Administrative Agent or any Lender at least three 10 Business Days prior to the Closing Date Date, and (or such later date ii) to the extent applicable, a Beneficial Ownership Certification with respect to the Parent Borrower if it qualifies as the Borrower may reasonably agree) shall, upon the initial borrowing a "legal entity customer" under the FacilityBeneficial Ownership Regulation to the extent requested by the Administrative Agent or any Lender, in each case, the results of which are reasonably satisfactory to the Administrative Agent and any such Lender.
(g) The parties thereto shall have been paid executed and delivered the ABL Credit Agreement and the other ABL Loan Documents with at least $450,000,000 in aggregate commitments from the lenders under the ABL Credit Agreement.
(which amounts may be offset against h) The parties thereto shall have executed and delivered the proceeds Junior Term Loan Credit Agreement and the other Junior Term Loan Documents and incurred at least $40,000,000 in aggregate principal amount of loans from the Facility)lenders under the Junior Term Loan Credit Agreement.
(i) [Reserved]
(j) The Arrangers shall have received (a) audited consolidated balance sheets representations and warranties of the Parent Borrower and related statements of operationseach other Loan Party contained in Article V or any other Loan Document, stockholders’ equity or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements correct in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before all material respects on the Closing Date, (c) audited consolidated balance sheets except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of Local TVsuch earlier date; provided that, LLC (“Local”)to the extent such representations and warranties are qualified with "materiality" or "Material Adverse Effect" or similar terms, for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date such representations and the related consolidated audited statements of operations warranties shall be true and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced correct in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter)all respects.
(k) The Arrangers No Default or Event of Default shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of exist, or would result from the Borrower and its Subsidiaries (based Credit Extension on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if or from the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X application of the Securities Act of 1933, as amended, or include adjustments for purchase accountingproceeds therefrom. 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 as of the Closing Date 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the The Administrative Agent on or prior to shall promptly notify the Parent Borrower and the Lenders of the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filingsuch notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Closing Date. Each Lender’s respective Commitments hereunder shall become effective, on the terms and subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent shall have received all of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this Agreement from the Borrower, (B) the Guaranty from each Guarantor and (C) the Security Agreement from the Borrower and each Guarantor; together with (subject to the last paragraph of this Section 4.01):
(A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject to the last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors is a party or is to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through the date of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Sources: Credit Agreement (Tribune Media Co)
Conditions to Closing Date. Each Lender’s respective Commitments hereunder shall become effective, on the terms and The effectiveness of this credit facility is subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent’s (or its counsel) receipt of the following, each of which shall be originals or facsimiles or “.pdf” files telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if Borrower (as applicable), each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), ) and each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions)::
(i) executed counterparts of (A) this Agreement from the Borrower, (B) the Guaranty from each Guarantor and (C) the Security Agreement from the Borrower and each Guarantor; together with (subject to the last paragraph of this Section 4.01):
(A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject to the last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,;
(ii) a Request for Credit Extension in accordance with the requirements hereof;
(iii) [Reserved];
(iv) such customary certificates of resolutions or other action 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 and other transactions hereunderaction, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors is a party or is to be a party;
(iiiv) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them the Borrower is validly existing and existing, in good standingstanding and qualified to engage in business in each jurisdiction where its ownership, exceptlease or operation of properties or the conduct of its business requires such qualification, other than with respect to the Borrower, except to the extent that failure to be in good standing do so could not reasonably be expected to have a Material Adverse Effect;
(ivvi) a Committed Loan Notice and a Letter favorable opinion letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ Sidley Austin LLP, counsel to the Loan PartiesBorrower, addressed to each Lender, in form the Administrative Agent and substance reasonably satisfactory the Initial Lender and covering such matters relating to the Loan Documents as the Administrative AgentAgent may reasonably require;
(vii) opinions a certificate signed by a Responsible Officer of local counsel for the Loan Parties listed Borrower certifying (A) that the representations and warranties of the Borrower contained in Sections 5.01(a), 5.01(b)(ii), 5.02(a) and (c) and 5.04 are true and correct on Schedule 4.01(aand as of the Closing Date and (B) hereto, in form and substance reasonably satisfactory to the Administrative Agentcurrent Debt Ratings (if any); and
(viii) such other assurances, certificates, documents, consents or opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to as the Administrative AgentAgent or the Arranger reasonably may require.
(b) Since (x) December 31, 2012 through the date Each of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect representations and (y) the date warranties of the Purchase AgreementBorrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of Closing Date; provided, there shall not have occurred a Target 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.
(c) No Default shall exist, or would result from the Credit Extensions or from the application of the proceeds therefrom.
(d) The Borrower and each Guarantor Administrative Agent shall have provided received, at least three (3) Business Days prior to the Closing Date, all documentation and other information reasonably requested in writing at least ten (10) days prior to about the Closing Date by the Lenders that they reasonably determine is Borrower required by regulatory authorities under applicable “know your customer” and anti-money-money laundering rules and regulations, including including, without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), reasonably requested in each case writing by the Administrative Agent (on behalf of the Initial Lender) at least ten (10) Business Days prior to the Closing Date.
(e) Any fees required to be paid on or before the Closing Date shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (directly to such counsel if requested by the Administrative Agent) of the Administrative Agent to the extent invoiced at least three Business Days prior to the Closing Date Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of such Attorney Costs incurred by it through the closing proceedings (or provided that such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition estimate shall not be deemed to be materially adverse to the interests thereafter preclude a final settling of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of accounts among the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing DateAdministrative Agent), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. 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 the Lender as of the Closing Date 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such the Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Cboe Global Markets, Inc.)
Conditions to Closing Date. Each Lender’s respective Commitments hereunder This Agreement shall not become effective, effective until the date on which all of the terms and subject to the other following conditions set forth herein, upon the satisfaction have been satisfied (or waiver (waived in accordance with Section 10.01) of the following conditions precedent:):
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicableBorrower, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), ) and each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions)::
(i) executed counterparts of (A) this Agreement from the Borrower, (B) the Guaranty from each Guarantor and (C) the Security Agreement from the Borrower and each Guarantor; together with (subject to the last paragraph of this Section 4.01):Agreement;
(Aii) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
(C) the Pledge Agreement, duly Notes executed by the Borrower and the Guarantorsin favor of each Lender requesting Notes, together with each of which shall be originals or telecopies (subject to the last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied followed promptly by undated stock powers executed in blank,originals);
(iiiii) such customary certificates of resolutions or other action 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 and other transactions hereunderaction, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors is a party or is to be a party;
(iiiiv) such customary documents and certifications (including Organization Documents and, if applicable, good standing certificates) of public officials as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them the Borrower is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be standing in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter its jurisdiction of Credit Application, if applicable, in each case relating to the initial Credit Extensionorganization;
(v) a solvency certificate from a financial officer customary opinion of the Borrower (after giving effect Proskauer Rose LLP, counsel to the Transactions) substantially in Borrower, reasonably satisfactory to the form attached hereto as Exhibit IAdministrative Agent and addressed to the Administrative Agent and each Lender;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent[Reserved];
(vii) opinions a customary certificate signed by a Responsible Officer of local counsel for the Loan Parties listed on Schedule 4.01(aBorrower certifying (A) heretothat the conditions specified in Sections 4.02(c) and (d) have been satisfied, in form and substance reasonably satisfactory to the Administrative Agent; and
(viiiB) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through that there has been no event or circumstance since the date of the Purchase Agreement, there has not occurred any event, development, change or effect Audited Financial Statements that has had or could be reasonably be expected to have, either individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filingand
Appears in 1 contract
Conditions to Closing Date. Each Lender’s respective Commitments The obligation of each Lender to make its initial Credit Extension hereunder shall become effective, on the terms and Closing Date is subject to satisfaction of the other following conditions set forth herein, upon the satisfaction precedent (or waiver (thereof in accordance with Section 10.01) of the following conditions precedent:):
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as Party (other than in respect of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Datea)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower Agent and its Subsidiaries, giving effect to the Transactions):
legal counsel: (i) executed counterparts of (A) this Agreement from the Borrower, (B) and the Guaranty from each Guarantor and of the Loan Parties listed on the signature pages thereto; (Cii) the Security Agreement from a Term Note executed by the Borrower and in favor of each GuarantorLender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date; (iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (subject to the last paragraph of this Section 4.01):
except as provided in such Collateral Documents); (A) copies of proper financing statementscertificates, filed or duly prepared for filing under if any, representing the Uniform Commercial Code pledged equity referred to therein, accompanied by undated stock powers executed in all jurisdictions that blank and (if applicable) instruments evidencing the Administrative Agent may deem reasonably necessary pledged debt referred to therein endorsed in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
blank; (B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to perfect satisfy the Collateral and protect the Liens created thereby Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
Collateral Agent; and (C) the Pledge Agreementcertified copies of UCC, duly executed United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Borrower and Security Agreement or that the Guarantors, together with Administrative Agent deems necessary or appropriate; (subject to the last paragraph of this Section 4.01iv) such certificates, if anycopies of Organization Documents of the Loan Parties, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority -95- #95982248v17
(b) All fees 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 each of the Borrower and the Guarantors is a party or is expenses required to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized paid hereunder or formed, and that each of them is validly existing and in good standing, except, other than with respect pursuant to the BorrowerAgent Fee Letter and Engagement Letter, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through the date of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case invoiced at least three (3) Business Days prior to the Closing Date shall have been paid in full in cash or will be paid on the Closing Date.
(or such shorter period as c) The Lead Arrangers shall have received (i) the Administrative Agent shall otherwise agree)Audited Financial Statements and (ii) the Unaudited Financial Statements.
(d) All actions necessary Prior to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials Refinancing shall have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter)consummated.
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing
Appears in 1 contract
Sources: Credit Agreement (Utz Brands, Inc.)
Conditions to Closing Date. Each Lender’s respective Commitments The obligations of the Lenders to make Term Loans hereunder shall become effective, on the terms and provided hereunder are subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance waiver, prior to or concurrently with Section 10.01) the making of such extension of credit on the Closing Date, of the following conditions precedent:
(a) The the Administrative Agent's receipt from the Parent Borrower and the Lenders of either (i) executed counterparts of this Agreement or (ii) evidence satisfactory to the Administrative Agent shall have received all (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent's receipt of either (i) executed counterparts of the followingIntercreditor Agreement by each party thereto or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Intercreditor Agreement;
(c) subject to Section 6.19 (it being understood that any document required to be delivered pursuant to Section 6.19 shall not constitute a condition precedent under this Section 4.01), each the Administrative Agent's receipt of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, the following documents each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), ) and each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions)::
(i) either (A) executed counterparts of (A) this Agreement from the Borrower, Guaranty by each Loan Party or (B) evidence satisfactory to the Guaranty from Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Guaranty;
(ii) a Note duly executed by the Parent Borrower in favor of each Guarantor and Lender requesting a Note at least 3 Business Days prior to the Closing Date;
(Ciii) the Security Agreement from the Borrower and each Guarantor; [Reserved];
(iv) a security agreement, (together with (subject each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "Security Agreement"), duly executed by each Domestic Loan Party, together with, to the last paragraph of this Section 4.01):extent not already delivered to the Administrative Agent:
(A) copies to the extent required under the applicable Security Documents and the Intercreditor Agreement, certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(B) proper financing statements, filed or duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been takenunder the Security Agreement, completed covering the Collateral described in the Security Agreement;
(C) a Perfection Certificate, duly executed by a Responsible Officer of the Parent Borrower;
(D) copies of Uniform Commercial Code, tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Domestic Loan Party as debtor and that are filed in those state and county jurisdictions in which any Domestic Loan Party is organized or maintains its principal place of business (or as otherwise provided for agreed by the Administrative Agent and the Parent Borrower), none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and Liens securing obligations under the Existing Credit Agreement);
(E) evidence of insurance required by the terms of the Security Agreement or Section 6.07 of this Agreement;
(F) Control Agreements to the extent required by Section 6.17 hereof; and
(G) IP Security Agreements, in a manner form and substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement; and
(v) deeds of trust, trust deeds, deeds to secure debt and mortgages (reasonably satisfactory to the Administrative Agent and its counsel) covering the Mortgaged Properties listed on Schedule 5.08(c) (including receipt together with the fixture filings and Assignments of duly executed payoff lettersLeases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, customary lien searches and UCC-3 termination statementsin each case as amended, the "Mortgages"), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantorsappropriate Loan Party, together with with:
(A) 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 reasonably necessary or desirable in order to create, subject to the last paragraph Intercreditor Agreement, a valid and subsisting Lien on the property described therein in favor of this Section 4.01) certificatesthe Administrative Agent for the benefit of the Secured Parties, if anysubject only to Permitted Liens, representing the Pledged Shares referred to therein accompanied by undated stock powers executed and that all filing, documentary, stamp, intangible and recording taxes and other fees in blankconnection therewith have been paid,
(iiB) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies"), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid Requisite Priority and subsisting Liens on the property described therein, free and clear of all Liens, excepting only Permitted Liens, and providing for such other affirmative insurance as the Administrative Agent may deem reasonably necessary,
(C) (1) American Land Title Association/American Congress on Surveying and Mapping form surveys or (2) to the extent surveys exist and the title insurer is willing to issue the applicable Mortgage Policies with survey coverage and survey endorsements acceptable to the Administrative Agent in its Permitted Discretion (in which case the appropriate Loan Party shall deliver such affidavits of no change or similar as required by the title insurer), updates thereof to the extent required by the title insurer, in each case, for which all necessary fees (where applicable) have been paid, 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 otherwise acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Security Agreement,
(E) a completed "Life-of-Loan" Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto) and, if any "Building" (as defined in 12 CFR Chapter III, Section 339.2) included as part of such Mortgaged Property is located within a special flood hazard area as determined by the Federal Emergency Management Agency and if flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor thereto) then copies of the appropriate Loan Party'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 Administrative Agent as loss payee on behalf of the Secured Parties, and
(F) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages, subject only to Permitted Liens, has been taken;
(vi) customary certificates of resolutions or other action authorizing the executionaction, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings and other transactions hereunder, customary incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor as the Administrative Agent may reasonably require Loan Party 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 each of the Borrower and the Guarantors such Loan Party is a party or is to be a party;
(iiivii) such customary documents and certifications evidencing that each Domestic Loan Party (including Organization Documents and, if applicable, good standing certificatesA) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, including certified true and that correct copies of the charter of each of them Domestic Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing and in good standingexisting, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not and qualified to engage in business in the jurisdiction of its organization, in form and substance reasonably be expected acceptable to have a Material Adverse Effectthe Administrative Agent;
(ivviii) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an favorable opinion of Debevoise Cravath, Swaine & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viiix) favorable opinions of local counsel for the Domestic Loan Parties listed in the jurisdictions set forth on Schedule 4.01(a) heretoExhibit F, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(x) a certificate attesting to the Solvency of the Loan Parties, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of the Parent Borrower; and
(viiixi) opinions a certificate signed by a Responsible Officer of FCC counsel for the Loan PartiesParent Borrower certifying that (A) the conditions specified in Section 4.01(f), in form (h), (i), (k) and substance reasonably satisfactory to the Administrative Agent.
(bl) Since have been satisfied and (xB) December since March 31, 2012 through the date of the Purchase Agreement2018, there has not occurred been any eventevent or circumstance which, developmentsingly or in the aggregate, change or effect that has had resulted in or could reasonably be expected to have, individually or result in the aggregate, a Target Material Adverse Effect Effect; provided, however, that each of the requirements set forth in clause (iv) or (v) above (except for the delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the UCC or customary "short form" intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office or (y) the date delivery of stock certificates of each Domestic Subsidiary of the Purchase Agreement, there Parent Borrower that is a Material Subsidiary) shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided constitute conditions precedent to the documentation and other information reasonably requested in writing at least ten (10) days Credit Extension on the Closing Date after the Parent Borrower's use of commercially reasonable efforts to provide such items on or prior to the Closing Date by if the Lenders that they reasonably determine is Parent Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Actto perfect such security interests within 90 days (or, in each the case at least three Business Days prior to of clause (v), 120 days) after the Closing Date (or such shorter period as subject to extensions approved by the Administrative Agent shall otherwise agreein its reasonable discretion).
(d) All actions necessary to establish that the Collateral Administrative Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been takenreceived reasonably acceptable (i) M&E appraisals prepared by an appraiser retained by ▇▇▇▇▇ Fargo Bank, in each caseNational Association, to the extent such Collateral (including the creation or perfection of any security interestii) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.Intellectual Property appraisals prepared by an appraiser retained by ▇▇▇▇▇ Fargo Bank, National Association, and (iii) field examination and Inventory appraisals prepared by an appraiser retained by ▇▇▇▇▇ Fargo Bank, National Association;
(e) The Acquisition Parent Borrower shall have been consummatedpaid, on or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse prior to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheldClosing Date, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All all fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agreeSection 2.09(c) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filinghereof and
Appears in 1 contract
Conditions to Closing Date. Each Lender’s respective Commitments hereunder shall become effective, on the terms and subject to the other conditions set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent shall have received all of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this Agreement from the Borrower, (B) the Guaranty from each Guarantor and (C) the Security Agreement from the Borrower and each Guarantor; together with (subject to the last paragraph of this Section 4.01):
(A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement or the Pledge Agreement, as applicable,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantors, together with (subject to the last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action 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 and other transactions hereunder, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Guarantor 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 each of the Borrower and the Guarantors is a party or is to be a party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through the date of the Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (y) the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
(f) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date; provided (i) that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (c) audited consolidated balance sheets of Local TV, LLC (“Local”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Target, Local and FoxCo for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clauses (b), (c) and (d) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter).
(k) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (based on the financial statements of the Borrower and the Target referred to in clause (j) above) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto. Notwithstanding anything herein to the contrary, it is understood that, other than with respect to any UCC Filing Collateral (as defined below) or the pledge and perfection of the security interest in the Stock Certificates, to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance with Sections 6.14 and 6.16; provided that the Borrower shall have delivered all Stock Certificates to the Administrative Agent on or prior to the Closing Date, but with respect to the Target and its Subsidiaries only to the extent received from the Sellers after the Borrower’s use of commercially reasonable efforts to obtain them on the Closing Date. For purposes of this paragraph, “UCC Filing
Appears in 1 contract
Sources: Credit Agreement (Tribune Media Co)